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The Magazine of Illinois Lawyers

September 2014Volume 102Number 9Page 449

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Best of Discussions

POAs in paradise, severance agreements and unemployment compensation

Is an Illinois POA for property valid in a state like Florida that requires two witnesses? And will an agreement to pay an employee after her termination date limit her eligibility for unemployment compensation? Here are answers gleaned from the ISBA discussion group.

Validity of Illinois POA for property in other states

Kurt R. Dittmer, La Harpe. I have a client who has a valid Illinois POA for property. The client has some property in Florida and needs to have the agent (his wife) execute some documents. The Florida attorney told me that Florida requires two witnesses and a notary and has requested I re-execute with another witness. [An Illinois POA for property requires only one witness.]

Doing this is only a minor inconvenience. My question is, shouldn't the valid Illinois POA be good enough? If not, how could we anticipate where the POA may be used in the future to comply with that state's rules?

ISBA lawyers respond

Eric Hasselberg, Peoria. The Illinois POA should be accepted…but this is why I have been using two witnesses and a notary on all POAs for more than 30 years. It avoids the conflict-of-law situation where another state requires more than Illinois. I don't know of any state that requires more than two witnesses and a notary.

Sherwin D. Abrams, Chicago. When I know that a client has property in another state or spends a good deal of time there, I make sure that POAs comply with the laws of Illinois and those other states. As for Florida, tell the lawyer there to read his/her state's statute.

709.2106 Validity of power of attorney….
(3) A power of attorney executed in another state which does not comply with the execution requirements of this part is valid in this state if, when the power of attorney was executed, the power of attorney and its execution complied with the law of the state of execution….

Severance agreement and unemployment compensation

Jon Ellis, Springfield. I am reviewing an employment severance agreement that states the employee's termination date is July 18, 2014. The agreement provides for continued salary and other employment benefits for the next eight months, until March 27, 2015. The agreement also provides that the employer will not contest an unemployment compensation claim filed within this eight months' period but that the employer will disclose the severance agreement to the unemployment office.

What effect, if any, would disclosure of the agreement have on a claim for unemployment compensation? Also, would the individual even be allowed to file an unemployment claim after March 27, 2015 with an employment termination date of July 18, 2014?

ISBA lawyers respond

Carl Draper, Springfield. Typically payments made to not work rather than for services rendered will not affect eligibility for unemployment compensation benefits. Even if the employer discloses the terms, it should not matter.

What will matter is whether the separation was voluntary or involuntary. Your client needs to make it clear upon application that even though the matter was resolved by agreement, the employee still faced "quit or be fired."