Illinois Bar Journal

August 2014Volume 102Number 8Page 366

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When caregivers take

A bill awaiting the governor's signature would protect seniors from being taken advantage of by a caregiver or court-appointed guardian.

Gov. Pat Quinn is expected to sign an amendment to the Probate Act that will make it easier for estates to establish the impropriety of gifts made in a will or similar instrument to a court-appointed guardian or informal caregiver.

The law is a response to a number of instances in which a senior is persuaded to change his or her will to benefit a caregiver. Such instances occur with court-appointed guardians and with informal caregivers who nose their way into an elderly person's life, elder law experts say.

The law deems "presumptively void" all transfers effective on the elderly person's death to caregivers if the amount is in excess of $20,000. The presumption is rebuttable if the caregiver can show he or she was entitled to the gift under the testamentary plan the ward had in place or that the transfer was "not the product of fraud, duress, or undue influence and proved by clear and convincing evidence."

The bill, SB 1048, was sponsored by Don Harmon, D-Oak Park and Rep. Emanual "Chris" Welch, D-Westchester. It provides a civil remedy and does not call for guardians or other caregivers to be prosecuted.

Elder law attorneys note, however, that when family estates try to recoup improper gifts, the money or property is almost always gone. These cases are certainly candidates for criminal action under the right circumstances.

A nationwide problem

Janna Dutton, an elder care attorney who served on the committee that established the law, said it was modeled after others in California and Nevada. She noted that many elderly people - particularly those with dementia - are being swindled nationwide.

Dutton ticks through the financial abuse she has seen. One man had a charitable trust set up and his caregiver convinced him to go to a lawyer and change the documents so that she was the beneficiary. Another elderly man, who loved gardens, left his estate to a botanical garden. A "kindly" neighbor who came to care for him convinced him to see his lawyer about changing his gift to leave her two thirds of his estate.

A 90-year-old man, who named as his primary beneficiary the Salvation Army, was befriended by a hospital worker across the street from his assisted living center in Chicago. She walked away with $600,000. When the Salvation Army tried to recover the money it was gone, spent by the hospital worker and her family.

"Undue influence is a very insidious dynamic because the elder person is completely dependent," Dutton said.

Dutton favors the law that presumptively voids transfers of $20,000 or more and places the burden on the transferee to prove she or he is entitled to the funds. "Maybe caregivers will realize that they can't get away with this and will think twice," she said. "Early in my career I had a caregiver who got a nursing home patient to give him her home."

Margaret C. Benson, the executive director of the Chicago Legal Volunteer Services, runs a guardianship program for indigent individuals seeking help getting a relative guardianship status. "We also help disabled adults who may be under the care of someone who wants to take advantage of them," she said.

Fundamentally, abuse happens because elderly people are lonely, sometimes in some stage of dementia, and they're getting attention from a caregiver.

"Where you've got an elderly parent with dementia, living alone because they don't want to move home with a child, they will often isolate [themselves]," Benson said. "What you'll find is a next door neighbor starts helping them out, and in helping out they convince people to give away their money."

- Janan Hanna

Matthew Hector is a Chicago lawyer.

Janan Hanna is a Chicago freelance writer and a licensed attorney.

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