NEW ABLE ACCOUNTS HELP INDIVIDUALS WITH DISABILITIES SAVE FOR SPECIFIC NEEDS
Making sure that the needs of loved ones with disabilities are met is of paramount concern to many people. Until recently, however, financially assisting a person with disabilities could have the unintended consequence of disqualifying the person from certain government-sponsored programs.
Effective January 1, 2016, the Illinois legislature enacted the Achieving a Better Life Experience (“ABLE”) Act. This Act permits the creation of special savings accounts for the purpose of supporting individuals with disabilities without having to include the account balance in determining eligibility for certain income- and asset-based support programs.
A person is eligible for an ABLE account so long as the person is eligible for benefits based on blindness or disability under the Social Security Act and such blindness or disability occurred before the person turned 26 years old, or to those who have attained a disability certification. A “disability certification” is a certification that a person has a physical or mental impairment which is expected to result in death or has lasted or will be expected to last longer than 12 months, or is blind. The condition has to have occurred before the person turned 26, and the certification must include a copy of the person’s diagnosis signed by a doctor.
The funds in the account may be contributed by the person with the disability (the account owner) or by any other person for the account owner’s benefit. Transfers to the account are presumed to be for fair market value and become the property of the account owner. Once established, the funds in the account may be used to pay for certain qualified expenses, which may include things like education, housing, transportation, employment training and support, assistive technology and support services, financial management and administrative services, legal fees, and funeral and burial services.
Distributions from the account are not taxable as income so long as they are used to pay for qualified expenses. Distributions from the account that are not for qualified expenses may be taxed as income and incur an additional tax penalty.
If there are funds in the ABLE account upon the death of the account owner, the State of Illinois may make a claim for those funds not to exceed the total amounts paid for medical assistance of the account beneficiary after establishment of the ABLE account, less any premiums paid from the account for a beneficiary to certain Medicaid programs.
The ABLE account program provides a means of supporting persons with disabilities with the benefit of the account owner being able to take distributions from the account for a variety of life-enhancing purposes without disqualification from income and asset-based programs. These accounts, however, are not a substitute for careful estate planning where one intends to provide for persons with disabilities after death. If you or someone you care about would benefit from an ABLE account or intend to provide for a person with disabilities through an estate plan, contact an attorney to discuss options.
HEALTHCARE POWER OF ATTORNEY GETS (ANOTHER) UPDATE
The Power of Attorney for Healthcare form is one of the most important legal documents a person can execute. This document appoints a person (called the agent) to make medical decisions for the person signing the document (the principal). This form has been revised several times over the past few years and, as of January 1, 2016, has changed yet again.
One change includes offering more choices for the principal to determine when the agent will be authorized to act for the principal. There were previously two options: 1) authorizing the agent to make healthcare decisions effective immediately upon the execution of the healthcare power of attorney; or 2) authorizing the agent to make decisions for the principal only when the principal is determined by his or her doctor to lack the ability to make medical decisions for him or herself. The law has now been updated to add a third option, which authorizes the agent to make decisions only when the principal lacks that ability but allowing the agent access to medical and mental health records and the ability to disclose them and the ability to communicate with the principal’s health care providers. Under this option the agent is also entitled to require the principal’s doctor to issue an opinion as to whether the principal can make competent healthcare decisions for him or herself. This newly-added option allows the principal to retain control over making health care decisions but also allows the agent the ability to get more information to help the principal make decisions and affords a means to establish when the principal can no longer safely make decisions for him or herself.
The other changes to the form include moving the section designating successor agents to a more conspicuous place on the statutory form; replacing the term “mental health services provider” with the term “psychologist;” and adding more categories of health care providers who are not eligible to be a witness to the Power of Attorney for Healthcare.
The updated statutory form also now allows the principal to choose whether or not to nominate the agent named in the document to act as the guardian of his or her person if it becomes necessary for such a guardian to be appointed by the court. The old form contained such a provision by default.
A Power of Attorney for Healthcare form is something every adult should have and can provide peace of mind to you and your loved ones. If you are among those who do not have this important document in place, contact your attorney soon.
THE EFFECT OF GUARDIANSHIP ON THE VALIDITY OF WILLS
The Probate Act was recently amended to expressly provide that a will is assumed to be invalid if it is made by a person after a court appoints a guardian for that person (the ward) and determines that the ward lacks “testamentary capacity,” that is, the legal and mental ability to make a will.
Although this may seem somewhat obvious, this addition to the Probate Act provides both another reason to get one’s affairs in order before losing testamentary capacity and a means of potentially avoiding costly and drawn-out battles over whether a person’s will is valid. The presumption applies only to wills made after the effective date of the amendment, which was January 1, 2016.
The Probate Act also contains a new provision which permits a guardian of a ward’s estate to ask the court to enter an order authorizing a ward to execute a will. Such a request must be accompanied by a doctor’s report finding that the ward does, in fact, have testamentary capacity. If the court enters such an order, then the automatic assumption that a ward’s will is invalid may be overcome. Further, the guardian will be required to retain a lawyer for the ward to work with to complete the will.
Establishing guardianship for a person is sometimes necessary. However, making the effort to execute a will or trust and powers of attorney for healthcare and property while one is mentally and legally competent can avoid the need for guardianship in some cases. An attorney can help you decide what levels of estate planning are appropriate for your specific situation.
CIVIL REMEDIES EXPANDED FOR FINANCIAL EXPLOITATION OF THE ELDERLY AND DISABLED
Those who financially exploit the elderly or disabled in Illinois are subject to criminal charges and penalties under the Illinois Criminal Code. As of January 1, 2016, the civil remedies for such exploitation have been expanded.
Financial exploitation of an elderly person or person with a disability is committed when a person who stands in a position of trust or confidence to an elderly person or person with a disability intentionally obtains control over the property of or uses the assets of an elderly person or person with a disability by deception or intimidation.
The Illinois Criminal Code was recently amended to provide that those who commit financial exploitation are subject to a civil suit and that when a civil judgment has been entered for financial exploitation, the defendant shall be liable to the victim for three times the value of the property that was illegally obtained plus attorneys’ fees and court costs. A person is subject to a civil lawsuit under the new law whether or not he or she was charged or convicted of the criminal offense of financial exploitation.
The revised law also makes it clear that victims retain all other rights and remedies they might have available under other laws in addition to the civil cause of action identified under the Criminal Code.
Taking advantage of our most vulnerable residents is an offense that is taken very seriously in Illinois. If you suspect that you or someone you know might be a victim of financial exploitation, contact law enforcement and your attorney to determine your rights.
“KNOW BEFORE YOU OWE” RULES CHANGE MORTGAGE PROCESS FOR HOMEBUYERS
Purchasing a home is generally the largest financial decision a person will make. In order to increase protection for consumers in the process of obtaining a mortgage, the Consumer Financial Protection Bureau recently enacted new mortgage disclosure rules for lenders (creditors) referred to as the “Know Before You Owe” rules. The new rules require creditors to issue documents called Loan Estimates (formerly known as the Good Faith Estimate) to help buyers compare loan options. Once the consumer has chosen a loan, the creditor is required to issue a form called a Closing Disclosure at least three days before the real estate closing (now called a consummation) to help the consumer understand the true costs of the loan. The Closing Disclosure contains information such as the monthly principal and interest payments, estimated insurance and tax costs, and the costs associated with consummation of a loan such as fees to the lender and title company.
Under the new rules, there are three kinds of significant changes to the loan that will require the creditor to issue a new Closing Disclosure, which triggers a new three-day disclosure period: 1) changes to the annual percentage rate of the loan; 2) addition of a prepayment penalty; and 3) a change to the actual loan product the consumer is getting.
Area lenders, realtors, title companies and attorneys have been working together to comply with the Know Before You Owe rules. If you are planning to get a loan to purchase a new home, be aware that these changes can affect the timeline for closing the deal. More information can be found at www.consumerfinance.gov/owning-a-home/. It is wise to use the services of a realtor and an attorney to help you navigate through the process of purchasing a home.
RECENT CHANGES TO ILLINOIS VEHICLE CODE
Effective January 1, 2016, the state of Illinois passed revisions to several traffic laws. The following summary of these laws will help keep you up to date with the general changes to the Illinois Vehicle Code.
1. Special Speed Limit in School Zones: The speed limit in school zones is 20 miles per hour on school days between the hours of 7:00 a.m. and 4:00 p.m., and drivers caught going more than the posted speed limit of 20 miles per hour will face a fine. The fine is a minimum of $150 for the first offense and $300 for the second or subsequent offense.
Drivers caught going 26 miles per hour or more but less than 35 miles per hour over the speed limit while in a school zone can be found guilty of a Class B Misdemeanor. Any driver caught traveling more than 35 miles per hour or more over the school zone speed limit will face a Class A Misdemeanor charge.
2. Special Speed Limit in Construction/Maintenance Zone: Drivers caught going more than the posted speed limit in a construction zone will face a fine of $250 for the first offense and $750 for the second or subsequent offense.
Drivers caught going 26 miles per hour or more but less than 35 miles per hour over the speed limit while in a construction zone can be found guilty of a Class B Misdemeanor. Any driver caught traveling more than 35 miles per hour or more over the posted speed limit will face a Class A Misdemeanor charge.
3. Transferring Vehicle Title to Spouse: When transferring a vehicle owner’s interest to a spouse due to the owner’s death, new revisions to the law require the spouse receiving interest in the vehicle to send to the Secretary of State proof of (i) the owner’s death; (ii) the transfer of ownership; (iii) the marital relationship between the original owner and the person receiving the vehicle; (iv) the last certificate of title; and (v) an application for certificate of title with applicable fees and taxes within 180 days after the death of the owner.
4. Violations for Truck Drivers: Commercial drivers who violate certain provisions of the Illinois Vehicle Code relating to regulations for safety standards, hours of service for drivers and requirements for qualifications of drivers can now be found guilty of a Class 3 Felony if the violation would take the driver or vehicle out of service and results in a motor vehicle accident that causes great bodily harm, permanent disability or disfigurement, or death to another person. Persons other than the driver whose violations of those regulations place the driver or vehicle out of service and results in a motor vehicle accident that causes great bodily harm, permanent disability or disfigurement, or death to another person can be found guilty of a Class 2 Felony.
DIVORCE LAW OVERHAULED IN ILLINOIS
The Illinois Marriage and Dissolution of Marriage Act (IMDMA) was overhauled for 2016 with the goals of making divorce a bit less contentious and to reflect the realities of modern spousal relationships and child-raising responsibilities.
The old IMDMA provided for several grounds for divorce. The new law provides for only one: irreconcilable differences. And, whereas the former law required the parties to the divorce to be separated for a significant period of time before being granted divorce on the basis of irreconcilable differences, the new law shortens the period of time a couple must be separated before ending their marriage.
Another major difference is the removal of the term “custody” from the new law. There is a trend away from the tradition where mothers primarily cared for the home and children while the fathers worked outside the home. There are now many situations where both parents work outside the home and divide the responsibilities of raising children. The new law removes the words “custody” and “visitation” from the law. Instead, the rights and responsibilities of divorcing parents for their children are now referred to as allocation of “parenting time” and “parental decision-making.” Now the right to make major decisions regarding the child (such as educational, medical, and religious decisions) doesn’t presumptively rest with the parent who was awarded custody. One thing that hasn’t changed, though, is the court’s ultimate consideration, which is what is best for the child.
The new law restricts the rights of parents to relocate to a new residence with their children. In Cook, DuPage, Kane, Lake, McHenry, or Will, a parent with equal or the majority of parenting time cannot move more than 25 miles from his or her current residence without the agreement of the other parent or the permission of the court. Parents with equal or a majority of the parenting time in the rest of the State must receive parental agreement or court permission if they want to move more than 50 miles from their current residence. A parent wishing to move must provide written notice to the other parent. If the other parent does not agree to the relocation, the court will have to decide the matter. Another change is that court permission is no longer required to move across state lines as long as the new residence is within 25 miles of the previous residence.
The division of a couple’s assets and liabilities and the provisions relating to spousal maintenance (i.e., the obligation to support a former spouse for a certain period of time) were also addressed in the revised Act. Valuation of a couple’s assets may be determined as of the date of trial (as under the old Act) but can be determined as of another date by agreement of the parties. Requests for maintenance and temporary financial relief will also be decided based upon new presumptions and requirements. For example, supporting documentation must now be provided with financial affidavits, and intentionally or recklessly filing an inaccurate financial affidavit can result in penalties and sanctions. Furthermore, the form of financial affidavits will be universal among all counties. Courts will also be allowed to make decisions about temporary support based only on the financial affidavits unless the court finds good cause for a hearing.
A comprehensive discussion of the many changes to the IMDMA is outside the scope of this article. Those considering divorce are especially encouraged to proceed with the assistance of an attorney in light of the significant changes to the Act and to avoid unintended future problems that can arise in a “do-it-yourself” divorce.
On March 10, 2016, the Freeport Area Chamber of Commerce held its annual dinner and awarded Bridget Trainor its Rising Star Award. Bridget is honored to be recognized for her service to the community and credits her family and co-workers as positive role models. The Rising Star Award is given to a young professional 35 years old or younger who has demonstrated dedication to not only his or her career but to community involvement as well. Currently, Bridget is a Board Member of the Freeport Area Chamber of Commerce, serves in the Freeport Noon Kiwanis Club, and serves on the United Way Campaign Committee. She is also on the Planning Committee for the Lincoln Douglas 5K.
Bridget also presented at an Estate Planning seminar held at St. Thomas Aquinas Catholic Church on April 10, 2016, which covered Wills, Trusts, and Powers of Attorney for Healthcare and Property. If your organization is interested in hosting a seminar and would like information on a specific legal topic, please contact our office. We are happy to present complimentary seminars on a variety of legal topics.
We are pleased to announce that Heather Magee has returned to the firm as a paralegal in January, 2016. Heather was previously a paralegal with our office from 2012-2014. Please welcome back Heather the next time you visit the office.
You can get other information and articles on our website at http://www.etpclaw.com. Please also visit Elliott & Trainor, P.C.’s LinkedIn and Facebook pages!
LAW NOTES is a publication of Elliott & Trainor, P.C., which is distributed free of charge to our clients and local business friends to provide news about developments in the law which may be of use. Nothing contained in this publication shall be construed as creating an attorney-client relationship with Elliott & Trainor, P.C., nor shall the content of this publication be considered as legal advice.