NEW CHANGES TO ILLINOIS POWER OF ATTORNEY ACT
Effective January 1, 2015, the provisions of the Illinois Power of Attorney Act (the Act) relating to health care powers of attorney will change in several ways. A Healthcare Power of Attorney (POA) allows the person signing it (the principal) to designate another person (the agent) to make healthcare decisions for him. Currently, Illinois law requires that healthcare power of attorney forms be accompanied by a notice to the principal advising him or her about the use and importance of the form. The law also includes restrictions on who may witness the signing of the form.
The amendments to the Act include changes to the required notice that must accompany the healthcare power of attorney form. The new notice is structured in a FAQ format that advises the person signing the Healthcare POA about the document, including advice on the things the principal should discuss with his chosen agent, the decisions the agent can make, advice about choosing an agent, the ramifications of not having an agent, and how to change or revoke the agent.
The amendments also specify certain healthcare professionals providing service to the principal who may not act as witnesses to the Healthcare POA form, including but not limited to the attending physician, advanced practice nurse or the physician assistant. Further, the amendments change the language of the statutory Healthcare POA form to clarify the principal’s choices relating to when the agent may act for him and life-sustaining treatment choices. It is important to note, though, that the amendments do not invalidate any Healthcare Power of Attorney form executed prior to the effective date of the amendments to the Act.
The Healthcare Power of Attorney form is one of the most important documents a person can sign to make sure that his health care wishes are carried out when and by whom he designates. The form provides healthcare protection and peace of mind to the principal’s loved ones. Questions about the Healthcare Power of Attorney form and the amendments to the Act may be answered by an attorney.
FRAUDULENT CONTRACT HELD UNENFORCEABLE AGAINST SENIOR CITIZEN
It is difficult to recover in many cases of fraud against a senior citizen or disabled person. American law generally allows people the right to enter into contracts freely. But, it is possible for a contract to contain terms that are so skewed in favor of one party that a court may determine it is invalid and unenforceable. A recent Illinois Appellate Court decision came to that conclusion in a case involving an agreement of an 89-year-old woman to give approximately $5.4 million in assets to her neighbor in exchange for the neighbor legally changing his children’s names to include her surname.
The woman (Mrs. A) had no spouse or children and had amassed significant assets prior to her death. These assets included an apartment worth about $1.4 million. Her neighbor (Neighbor) was a successful neurosurgeon who had befriended Mrs. A over a period of several years. When Mrs. A was 89 years old, she entered into an agreement with Neighbor to give him her apartment and an additional gift of $4 million upon her death. The agreement stated that the gift would be made “in exchange for your past and future services and valuable consideration (including helping [my family name] to continue after my death by incorporating it into your children’s names).” Mrs. A’s longtime lawyer was not consulted about the contract and it was not signed by any witnesses.
Shortly after they signed the contract, Neighbor legally changed his sons’ names to add Mrs. A’s surname as a middle name. A few years later, Mrs. A later transferred her apartment to her trust. Neighbor filed a lawsuit to enforce the contract with Mrs. A. Mrs. A’s guardian (who was appointed after the transfer of the apartment to the trust due to Mrs. A’s dementia) defended the suit by arguing that the contract was fraudulent. The court agreed that the contract was not enforceable.
In upholding the decision, the Illinois Appellate Court found that the contract lacked sufficient consideration. In other words, the only promise Neighbor made in exchange for getting over $5 million in assets was to add Mrs. A’s surname as his sons’ middle names, which the Court found was grossly inadequate. Mrs. A. gained very little by the name change. There was no obligation for the sons to actually use Mrs. A’s surname and nothing to prohibit them from legally removing her surname at a later date. Further, the Court found the overall circumstances surrounding the agreement unfair. Neighbor was a highly educated physician. In contrast, Mrs. A was an elderly woman who was diagnosed with Alzheimer’s disease a fairly short time after the contract was signed – a contract that was in conflict with her existing estate plan.
This case shows that even though the law allows great latitude with respect to executing contracts, it will also protect people who enter into unconscionable agreements.
One should always be wary of situations in which there is a great disparity of bargaining power between the parties to a contract. Having an attorney review a contractual agreement may prevent an unconscionable (and unenforceable) agreement.
AUTOMATIC EXPUNGEMENT OF CERTAIN JUVENILE OFFENSES
“All men make mistakes, but only wise men learn from their mistakes.” Winston Churchill
Who among us hasn’t made a few youthful indiscretions? Unfortunately, those indiscretions sometimes result in a criminal record. A new law expands expungement rights for youthful criminal offenses to allow certain juvenile records to be erased. Beginning in January, 2015, the Juvenile Court Act provides for automatic expungement of a person’s law enforcement records relating to certain incidents occurring before his or her 18th birthday. Automatic expungement is applicable to situations in which 1) the minor was arrested for an eligible offense and no petition for delinquency was filed; 2) the person turned 18 during the last calendar year; and 3) there have been no additional arrests or filings of a petition for delinquency or charges not initiated by arrest within 6 months of the minor’s most recent arrest.
In addition, the amended law provides that the Department of State Police is required to provide a process for accessing and reviewing one’s juvenile records to verify that eligible offenses have been expunged. There are certain offenses that are not eligible for automatic expungement, including but not limited to offenses that, if committed by an adult, would be a Class 2 felony or higher offense. If you have questions regarding the offenses that are eligible for automatic expungement, contact your attorney.
NEW PROVISION OF PROBATE ACT ADDRESSES GIFTS TO CARETAKERS
Personal caretakers have some of the most challenging and important jobs in our society. Unfortunately, there can be unscrupulous caretakers who take advantage of the advanced age or medical conditions of the people they care for by inducing those people to transfer real or personal property to the caretaker. The Illinois Probate Act has been amended to include a new section addressing transfers of property to personal caretakers.
Effective January 1, 2015, any civil court action in which a legal document transferring property (will, trust, deed, contract, etc.) is challenged, there will be a presumption that the transfer is void if it was transferred to a caretaker and the value of the transferred property was over $20,000. It is important to note that the presumption applies only in the event the transfer document is challenged in court.
In this new provision, the term “caretaker” is defined as a person who (either voluntarily or for compensation) assumes responsibility for the care of another person who needs assistance with completing activities of daily living, such as bathing, dressing, eating, etc. The term caretaker does not include family members of the person requiring the care. Thus, transfers to a spouse, child, grandchild, sibling, aunt, uncle, niece, nephew, first cousin or parent of the person receiving assistance will not be presumptively void. Transfers to more distant family members or unrelated caretakers, however, will be presumptively void if challenged in court.
Recognizing that some transfers to caretakers are legitimate, the new section of the Probate Act also provides exceptions to the presumption that certain transfers to caretakers are void. One exception is evidence that the challenged transfer document does not transfer any greater share to property than the caretaker was already entitled to under a transfer instrument in effect before the caretaker became a caretaker. The presumption may also be rebutted by evidence that the transfer was not made due to fraud or duress of the person being care for. The new law is only applicable to transfers made after January 1, 2015.
Any concerns about transfers of property to a caretaker should be discussed with your attorney.
JOB OPPORTUNITIES FOR QUALIFIED APPLICANTS ACT
A new Illinois law will prohibit certain inquiries into the criminal backgrounds of job applicants. The law, called the Job Opportunities for Qualified Applicants Act (the “Act”), takes effect January 1, 2015.
The Act is intended to expand the access of qualified job applicants with criminal histories to employment opportunities. The law prohibits employers from inquiring into, considering, or requiring disclosure of a criminal record or criminal history of a job applicant until the applicant has been determined qualified for the position and notified that the applicant has been selected for an interview by the employer. That means that an employer may inquire into an applicant’s criminal history after the applicant has been deemed qualified for an interview or after making a conditional offer of employment.
There are certain jobs to which the Act does not apply, including 1) jobs in which employers are required to exclude applicants with criminal convictions due to state or federal law; 2) jobs requiring fidelity or equivalent bonds which could not be obtained by applicants with certain criminal convictions; and 3) jobs in which employers employ people licensed under the Emergency Medical Services (EMS) Systems Act.
The Act defines “Employer” as a person or entity having 15 or more employees in current or preceding calendar year. The Act does not prohibit an employer from letting an applicant know in writing of specific criminal offenses that would disqualify a job applicant from a particular position due to federal or state law or the employer’s policy. Failure to comply with the requirements of this new Act may result in four levels of civil penalties ranging from written warnings up to imposition of monetary penalties in the sum of $1,500.
An employer seeking additional information about the applicability of the Act to the employer should contact an attorney of his or her choice.
THE SMALL ESTATE AFFIDAVIT: A LITTLE DOCUMENT WITH BIG IMPACT
The Illinois Probate Act has recently been amended to revise the required contents of small estate affidavits. A small estate affidavit is a document that may be used instead of court proceedings (probate) to transfer the assets of a deceased person (the “decedent”) to that person’s heirs. Small estate affidavits are permissible when the decedent did not own real estate and died owning assets of less than $100,000.
The new small estate affidavit form requires the affiant (the person signing the document) to list all the debts owed by the decedent. Those debts must then be classified according to their priority of payment under the terms of the law. The affiant must acknowledge that the decedent’s debts must be paid before any remaining assets are distributed to heirs. The Act also requires the affiant to indemnify any creditors of the decedent who are damaged by reliance on the affidavit. In other words, if a creditor relied on the affidavit and suffers a loss, the creditor can sue the affiant (who will then be subject to reasonable attorneys’ fees).
Small estate affidavits are intended to be used in very specific circumstances. Due to the potential liability that the affiant may incur, an attorney should be consulted prior to executing a small estate affidavit.
Elliott & Trainor, P.C. is pleased to introduce Katherine Baker as the most recent addition to our office staff. Katherine’s paralegal studies degree has made her a valuable asset to the office. Please welcome Katherine the next time you stop by the office!
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