Elder Law

(Barickman, R-Bloomington ) amends the Real Property Transfer on Death Instrument Act to make numerous changes since its enactment in 2012 to reflect practitioners' experience with the original Act. It has just been introduced. The changes are as follows: 

(1) The definition of owner is revised to reflect that only individuals acting in their own personal capacity can execute a TODI.

(2) The term “residential real estate” is replaced throughout the text with the term “real property.” Illinois is the only state to date that limits the availability of a TODI to residential real estate. 

(3) Clarifies that a TODI can transfer the real property to the beneficiary in any form of ownership recognized and valid under state law. 

(4) Clarifies that a TODI can designate the trustee of a trust that may be amended, modified, revoked or terminated after the date the TODI is executed, and a trustee under a will of another individual who has predeceased the owner.

(5) Clarifies that a TODI may not be admitted to probate as the will of the owner or as a codicil to the owner’s will.

(6) Clarifies that a TODI witnessed by only one witness, even if notarized, is not a valid TODI. It also clarifies that the attestation clause language and formalities to be followed in executing the TODI require only “substantial compliance.”

(7) Clarifies that the owner may transfer the real property at any time without regard to the fact a TODI is filed. A transfer of the real property effectively revokes the TODI, not by means of a revocation, but by the doctrine of extinction by ademption.

(8) Regarding the default rules that govern when two or more beneficiaries are designated, Illinois law presumes when property is deeded or transferred to two or more parties, the parties take equal shares as tenants in common and not as joint tenants unless otherwise indicated. Stating the default rule, though perhaps not legally necessary, will avoid a possible ambiguity and clarify the default rule governing lapses and concurrent ownership.

(9) Clarifies that unless waived by the surviving spouse, a TODI is subject to renunciation by the surviving spouse and provides the procedure by which the rights are to be exercised.

(10) Clarifies the currently vague language on the rights of creditors with more specific language borrowed from the Uniform Law Commission but consistent with long-standing Illinois law.

was issued by Governor Pritzker yesterday. It orders the following for the duration of the Gubernatorial Disaster Proclamation for COVIR-19:

(1) the requirement that a person must "appear before" a notary public commissioned under the Illinois Notary Public Act is satisfied if: the notary public performs a remote notarization via two-way audio-video communication technology; the notary public is physically within the State while performing the notarial act; and the transaction follows the guidance posted by the Illinois Secretary of State on its website;

(2) any act of witnessing required by Illinois law may be completed remotely by via two-way audio-video communication technology if specified requirements are met;

(3) specified provisions of the Electronic Commerce Security Act that prohibit electronic signatures on certain documents remain in full effect;

(4) notwithstanding any law or rule of the State to the contrary, absent an express prohibition in a document against signing in counterparts, all legal documents, including deeds, last wills and testaments, trusts, durable powers of attorney for property, and powers of attorney for health care, may be signed in counterparts by the witnesses and the signatory; a notary public must be presented with a fax or electronic copy of the document signature pages showing the witness signatures on the same date the document is signed by the signatory if the notary public is being asked to certify to the appearance of the witnesses to a document.

(LaPointe, D-Chicago) authorizes the creation of supported decision-making agreements. It allows a supporter to assist a principal in accessing, collecting, or obtaining information that is relevant to a decision authorized under the supported decision-making agreement. Provides that a supporter may exercise the authority granted to the supporter in the supported decision-making agreement. Prohibits a supporter from doing certain actions in relation to the principal. Provides a form for a supported decision-making agreement and requires a notary public or two or more witnesses to be present and sign and date a supported decision-making agreement.

Provides that a decision or request made or communicated with the assistance of a supporter shall be recognized as the decision or request of the principal and may be enforced by the principal or supporter on the same basis as a decision or request of the principal. Provides that if a person who receives a copy or is aware of the existence of a supported decision-making agreement and has cause to believe that the principal is being abused, neglected, or exploited by the supporter, the person shall report the alleged abuse, neglect, or exploitation to the Adult Protective Services Hotline. Provides that a principal may revoke the supported decision-making agreement and invalidate the supported decision-making agreement at any time. Assigned to House Rules Committee. 

Morrison, D-Deerfield) Amends the Guardians For Adults With Disabilities Article of the Probate Act of 1975. It provides that a petition for the appointment of a temporary guardian for an alleged person with a disability must be filed at the time of or subsequent to the filing of a petition for adjudication of disability and appointment of a guardian. Requires that the petition for the appointment of a temporary guardian must state specific facts. Requires that notice of the time and place of the hearing on a petition for the appointment of a temporary guardian or petition to revoke the appointment of a temporary guardian must be given not less than three days before the hearing. Scheduled for Senate Judiciary Committee March 3, 2020. 
 

(Crowe, D-Wood River) amends the Criminal Code of 2012 concerning the offense of financial exploitation of an elderly person or a person with a disability. Expands the scope of "person who stands in a position of trust and confidence" to include a friend or acquaintance of the elderly person or person with a disability who is in a position of trust. Assigned to the Committee on Assignments. 
 

(Villivalam, D-Chicago) expands the definition of "mandated reporter" to include a person who performs the duties of a banker, broker, investor, investment advisor, attorney, financial consultant or financial advisor, broker-dealer, or administrator, regulator, or supervisor of any of the foregoing. Just introduced. 

(Villivalam, D-Chicago) Amends the Medical Assistance Article of the Illinois Public Aid Code. It provides that a person who uses Medicaid spend-down to qualify for medical assistance may not be eligible for medical assistance if the person does not meet his or her monthly spend-down for six consecutive months. Just introduced. 

(Davis, D- East Hazel Crest) provides that a principal may elect a 30-day delayed revocation of the principal's health care agency. Just introduced.