Elder Law

Senate Bill 3228 (Haine, D-Alton; Williams, D-Chicago) was signed into law yesterday. It is a major rewrite of the power of attorney for health care law that does the following: (1) Replaces the current notice with a new notice styled more in the FAQ format and replaces the current form with a new form. No specific format is required for the statutory health care power of attorney other than the notice must precede the form. Retains current law that authorizes principals to use other forms instead of using the new statutory one as long as they comply with Illinois law. (2) Clarifies that a witness must be at least 18 years old and that some employees who are not owners of a health care facility may serve as a witness, specifically listing chaplains or social workers, and nurses. (3) The savings clause provides that Senate Bill 3228 doesn't invalidate existing powers of attorney for health care. Effective January 1, 2015.

(Barickman, R-Bloomington; Sims, D-Chicago) makes several changes to the Illinois Transfer on Death Instrument Act. (1) Makes the recording of a notice of death affidavit a permissive action that can be taken by the beneficiary to confirm title to the residential real estate but is not a mandatory requirement to perfect title. (2) Allows a bona fide purchaser for value and without notice before the recordation of a lis pendens for an action to set aside or contest the transfer on death instrument ("TODI") to take free and clear of any such action or contest. (3) Clarifies that acceptance of the TODI by the beneficiary during the owner's lifetime is not a requirement. (4) Eliminates the right of an agent acting under a durable power of attorney from creating or revoking a TODI. But it doesn't affect the agent's right or power to sell, transfer, or encumber the residential real estate if so authorized under the POA. (5) Clarifies that only substantial compliance with the execution formalities is required. Effective January 1, 2015.

(Bivins, R-Dixon; Demmer, R-Dixon) expands the small estate affidavit (SEA) statute to include much more detailed information about the known debts of the decedent. Requires the affiant to sign under a notary public to aid in the enforcement of the civil and criminal penalties for misusing a SEA. Syncs up the SEA and the Safety Deposit Act. It applies to estates in which the decedent's date of death is on or after January 1, 2015.

(Silverstein, D-Chicago; Welch, D-Westchester) creates a civil action in the Probate Act if a “presumptively void transfer” is challenged that applies to “caregivers.” If a “transfer instrument” transfers property in excess of $20,0000 to a caregiver and is challenged, it creates a rebuttable presumption that this transfer is void. A caregiver is defined as anyone who has assumed responsibility for all or a portion of the care of another person who needs assistance with daily living activities. A caregiver doesn’t include a “family member” of the person receiving assistance. There are two exceptions to this rebuttable presumption. (1) If the transferee’s share under the transfer instrument is not greater than the share of the transferee was entitled to under the transferor’s testamentary plan in effect before the transferee became a caregiver. (2) If the transfer was not the product of fraud, duress, or undue influence as proved by clear and convincing evidence. If the caregiver attempts and fails to overcome the presumption, the caregiver must bear the cost of the proceedings, including reasonable attorney’s fees. The statute of limitation for challenging a presumptively void transfer is two years unless the Probate Act requires a shorter period. Senate Bill 1048 applies only transfer instruments executed after January 1, 2015. Passed both chambers.

(Harmon, D-Oak Park) creates a new section in the Probate Act entitled “presumptively void transfers.” It applies to caregivers who, either as a result of family relationship, voluntarily, or in exchange for compensation, have assumed responsibility for all or a portion of the care of another person who needs assistance with activities of daily living. It applies to “transfer instruments” that includes a will, trust, deed, form designated as payable on death, contract, or other beneficiary designation form. It presumes, with some exceptions, that a transfer instrument is presumed to be void if the transferee is a caregiver, or a person related to a caregiver, and the fair market value of the transferred property exceeds $20,000. It has some exceptions, which are as follows: (1) if the transferee establishes by clear and convincing evidence that the transfer was not the product of fraud, duress, or undue influence. But it prohibits the court from making that determination solely upon the testimony of the caregiver. (2) If the transfer instrument was reviewed by an “independent attorney” who signs and delivers a statutory certificate of review. (3) If the transferee’s share under the transfer instrument is less than the share the transferee was entitled to under the transferor’s testamentary plan in effect before the transferee became a caregiver. If the caregiver attempts and fails to overcome the presumption under this section, the caregiver must bear the cost of the proceedings, including, without limitation, reasonable attorney’s fees. Assigned to Senate Judiciary Committee.

(Silverstein, D-Chicago) provides that a guardian of an adult disabled ward's person and estate has the authority to commence proceedings, including, but not limited to, adoption, marriage, or dissolution of marriage proceedings, on behalf of the ward if the court finds the proceedings to be in the best interests of the ward. Scheduled for hearing this Tuesday in Senate Judiciary Committee.

(Brauer, R-Springfield) lifts the cap on the $25 court-services fee that a county may charge civil litigants and convicted defendants for courthouse security if there is an acceptable cost study prepared that justifies it. Scheduled for House Judiciary Committee Wednesday morning.

(Silverstein, D-Chicago) amends the Probate Act of 1975 in the Section concerning a child's award. It replaces references to "adult dependent child" with "adult child." Scheduled for hearing Tuesday in Senate Judiciary Committee.

(Sandack, R-Lombard) amends the Code of Civil Procedure statute of repose for attorneys by tolling the six-year statute of repose if the client is still represented by the attorney or the attorney knowingly conceals the act or omission. The period of limitations will not begin to run until the person is no longer represented by the attorney or until the client should have known of the injury. Introduced and referred to House Rules Committee.