Encourage Your Loved Ones to Plan in 2023

By now, if you have followed my blog, you understand the importance of putting together a comprehensive estate plan. You have worked with our office or another attorney to put together your unique estate plan and feel peace of mind knowing that you have a plan for your children and loved ones when you can no longer care for them. However, it is also important to talk with your loved ones, especially elderly parents, about creating an estate plan. As the Baby Boomers retire and move onto to this next phase in their lives, careful estate planning and disability planning is crucial. I know that it is difficult to have these conversations, which is why I have a few tips to help start this conversation:

• Be sensitive to your loved ones’ feelings. Put yourself in their shoes and keep in mind that people rarely want to talk about their own passing. One way to begin the conversation is to talk first about the need for disability planning in case they become too ill to communicate with doctors or handle financial matters for themselves. The conversation can then progress to the importance of having an estate plan to, upon their passing, transfer their assets in the way that they wish, provide for the care of any dependents or pets, and minimize taxes, court costs, and legal fees. Communicate that you are not trying to control their decisions but only want to ensure that their own wishes regarding their medical care and property are known—and that their instructions are in writing so loved ones can carry them out.

• Involve others in the conversation. If you speak to your parents about the need for an estate plan, try to include any siblings to avoid giving the impression that you are attempting to influence or control your parents’ choices. You and your siblings should emphasize to your parents that the meeting is not about your inheritance but focus on their wishes for a serious illness or their passing. For example, if it is important to a loved one that they have care at home and not in a nursing home, it is vital that their disability planning and estate planning documents include provisions to pay for that care.

•  Consult an estate planning attorney. An experienced estate planning attorney can help you and your loved ones create an estate plan and disability plan tailored to meet each of your unique needs and carry out your wishes. If your family members already have an estate plan, I can work with them to review or update that existing plan. In my practice, I can provide each person with guidance and information about the options available to them. Further, I assist my clients to put a plan in place to prevent unnecessary stress, legal expenses, and taxes, as well as uneven inheritances, disputes among loved ones, and delays in passing your assets to your loved ones or charities. In addition, the guidance I offer will give you and your loved ones the peace of mind that comes with knowing that plans are in place if any of you become ill and that your wishes will be honored when you pass away.

With 2022 ending, a lot of people are thinking about their 2023 New Year’s resolutions. If you have already worked with me to draft your comprehensive estate plan, encourage your loved ones to add estate planning to their 2023 resolutions. Call attorney Lauren Kaplan to set up a free consultation at (312) 952-1077 ext. 2 or lkaplan@curlerlaw.com. To a happy and healthy holiday and New Year!

The Truth About Trusts

When I meet with clients to discuss their estate planning goals, our first discussion generally focuses on the difference between Wills and Trusts, as well as the pros and cons of each option. In many discussions, I have found that clients initially request a Will because they think that a Revocable Trust is only for the very wealthy. In this blog post, I discuss four myths about Trusts and why a Revocable Trust might be a good option to include in your comprehensive estate plan.

Myth 1: Only very wealthy people need trusts

As stated earlier, many of my clients believe that Trusts are only for wealthy individuals and families. In fact, Trusts can be a helpful estate planning tool for many individuals. Even for average individuals, drafting and properly funding a Trust can help your estate avoid probate court after your death and can help protect your family in the event of your incapacity or death.

Myth 2: You will always avoid Probate with a Revocable Trust

Yes, having a properly drafted and funded Trust will help your estate avoid Probate. However, the key word here is funded. Once you have worked with an estate planning attorney to draft your Trust, you need to ensure that all of your assets are titled in the name of the Trust. I have worked with clients who have had to open probate estates when their loved one died with a Trust but left one or two assets out of the Trust. Once you draft your Trust, take the time to review your assets to ensure that your Trust is properly funded.

Myth 3: You lose control of your assets with a Trust

One concern I hear from clients is that if they put together a Trust, they will lose control of their assets. With a Trust, the grantor (the person who established the trust and funds the assets into the trust) maintains control of all their assets until death, or until and unless they choose to resign as trustee and have a successor trustee act. During their lifetime, the grantor maintains control of their assets including how they are distributed to beneficiaries. With a Revocable Trust, the grantor can also edit or even revoke their Trust should circumstances change.

Myth 4: Trusts are expensive to create

Trusts are more expensive to create than Wills, however, they can save your estate and your loved ones money after your death by avoiding Probate court. Depending on the size of your estate, probate expenses could cost thousands of dollars. If there is a family dispute, the costs are even higher. By creating and properly funding a Revocable Trust when you are living, you are helping save your estate and loved ones significant amounts of money as well as relieving them from the stress of probate proceedings.  

If you have additional questions about Trusts, Wills, Probate, or estate planning generally, contact attorney Lauren Kaplan at lkaplan@curlerlaw.com or (312) 952-1077 ext. 2 for a free consultation.

Wrongful Death, Survival, and Probate Considerations

When someone dies because of the negligence of another, their loved ones can bring a lawsuit to recover damages for both injuries to the person who died (“decedent”) as well as the grief suffered by the family members of the decedent. These lawsuits are generally referred to as “Wrongful Death” lawsuits, but there are actually two different causes of action that family members can bring to recover damages.

Wrongful Death v. Survival

A survival action is a lawsuit brought by a representative of the decedent’s estate to recover damages for injuries to the decedent. These injuries could include pain and suffering, recovery for medical bills or lost wages and any other injury the decedent may have sought recovery for had they survived.

A wrongful death action, on the other hand, seeks compensation to the family members of the decedent for the losses they suffered as a result of the decedent’s death. The damages may include the grief and sorrow suffered by these family members. Many times, the representative will file a lawsuit including claims for both survival and wrongful death.

For our purposes, the major difference between a survival action and a wrongful death action is that the representative of the estate must open a Probate case in court to file a survival action.

Survival Actions in Probate Court

In previous blog posts, we have discussed probate court and the representative’s role in administering estates. Before the personal representative can file a survival action, a probate estate must be opened. If the decedent had a Will, the Will must be admitted to probate and the same process for opening the estate would apply as if there was no survival action. Once the probate estate is open, the attorney can file the survival action in the civil court.

During the probate administration, the representative of the Estate (Administrator or Executor) will collect the decedent’s assets, send notice to creditors, and otherwise perform the typical steps of administration. Once a settlement or verdict is reached in the survival action, the settlement must be approved by the court and then the probate judge will approve distribution pursuant to the Will, if any, or the Illinois rules of descent.

Some Considerations

It is important to keep in mind that when opening a probate case to pursue a survival action, the estate is still subject to creditors’ claims and medical liens. If the potential settlement may exceed the value of such claims, it is important to speak with an attorney to determine if it is worth it to file the survival action.

If you have questions about probate, estate planning, or elder law, contact attorney Lauren Kaplan at lkaplan@curlerlaw.com or (312) 952-1077 ext. 2 for a free consultation.

When to Use a Small Estate Affidavit

I have written several blog posts about what happens to your property if you do not have an estate plan together, what Probate court is, and why you might want to avoid it.  However, what happens to your property if it does not need to go through Probate court, but it also has not been distributed through a Trust, payable upon death designation, or otherwise? This is where a Small Estate Affidavit comes into play.

When to use Small Estate Affidavit

For some background, if an individual dies with over $100,000.00 in assets or owning real property, neither of which were transferred upon death, a Probate estate must be opened to transfer those assets. A Small Estate Affidavit can be used when someone dies owning less than $100,000.00 of assets and no real property (or real property that was otherwise transferred outside of Probate through Joint Tenancy or a TODI). A Small Estate Affidavit cannot be used if a Probate estate has already been opened.

Additionally, situations can arise where the Decedent completed their estate plan, yet a Small Estate Affidavit is still necessary to transfer assets. For example, S worked with an attorney to draft a Revocable Trust and funded most of her assets into the Trust. After S’s death, her Trustee found an old bank account containing $20,000.00 that had not been funded into the Trust. S’s Trustee would use a Small Estate Affidavit to liquidate that old account and put that money into the Trust.  

How to Use a Small Estate Affidavit

The Small Estate Affidavit is a state-specific form that a representative of the Decedent completes to liquidate the Decedent’s property outside of court. The representative fills out information pertaining to the Decedent, Decedent’s heirs and legatees (if there is a Will), value of the estate including vehicles, as well as debts of the Decedent.

After the Small Estate is complete, the representative must sign it, have it notarized and attach the death certificate. The representative can then bring the Small Estate Affidavit to banks and financial institutions to collect the Decedent’s assets and distribute them to the heirs. Debts, including awards allowed by the law for children and surviving spouses, must be paid prior to distribution to heirs.

While a Small Estate Affidavit is a much simpler process than opening a Probate estate, the best practice is to have a properly executed Estate Plan, which can allow assets to pass through a Trust or other forms that allow for your assets to be passed to your heirs automatically, upon your passing.

If you have questions about Small Estate Affidavits, Probate or are ready to put your Estate Plan together contact attorney Lauren Kaplan at lkaplan@curlerlaw.com or (312) 952-1077 ext. 2 for a free consultation.

Avoiding Probate with a TODI

In my previous blog posts, I have emphasized how important it is to put your estate plan together, especially if one of your goals is to avoid Probate. If you own real property in Illinois, there are several ways to transfer your real property to your loved ones at the time of death including joint tenancy with the right of survivorship or deeding the property into your Revocable Trust. In Illinois, one of the lesser-known ways to transfer property at the time of your death is through a document called a Transfer on Death Instrument (“TODI”)[1].

What is a TODI?

A TODI is a legal document that the owner of real property, including joint owners, completes to transfer that property to beneficiaries after the last owner’s death. Unlike a Deed which transfers the property upon execution and recording of the Deed, a TODI does not become effective until after the death of the last owner to die. To illustrate, A and R own a house as joint tenants with the right of survivorship and they want their children, G and D to inherit their house after they die. A and R will draft a TODI naming G and D as beneficiaries. After A dies, R still owns the house through their joint tenancy. However, after R dies, the property will transfer to G and D. It is important to note that a TODI is revocable until the last owner’s death.

Requirements for Validity

To ensure that the TODI is valid it must: 1. Comply with the requirements for a deed; 2. State that the transfer occurs on the owner’s death; 3. Be recorded in the county or counties where the property is physically located before the owner’s death; and 4. Be executed with the same formalities and requirements as a Will. Specifically, the owner must have legal capacity to sign a Will (see our blog on Testamentary Capacity) and the owner must sign the TODI in front of two witnesses and a notary public.

Beneficiaries of a TODI

The beneficairies of a TODI do not have to be individual people. In fact, you can name any legal entity that can own real estate as a beneficiary, such as a trust, corporation, or other legal entity.

TODIs are a useful estate planning tool as they generally are less expensive to complete than a transfer of real property into a revocable trust and they provide flexibility for the owner since the transfer does not occur until after their death. Please note that the law is constantly changing so it is important to work with an attorney experienced in estate planning and transfers of real property to draft and properly record this document.

If you are interested in learning more about TODIs or other estate planning tools, please contact me at lkaplan@curlerlaw.com or (312) 952-1077 ext. 2 for a free consultation.

[1] The Illinois statute governing TODIs is 755 ILCS 27/1

Estate Planning for Young Families

When starting a family and adjusting to life with a baby or young children, between diapers, bottles, daycare, and sleep regressions, putting together an estate plan often falls by the wayside. It is never easy to think about your own mortality, but putting together a comprehensive estate plan will help protect your family in the event of your death or incapacity. Next time you are scrolling through social media during a 3:00 a.m. feeding, consider these reasons why it is crucial to put together a comprehensive estate plan as a parent with minor children.  

1. Name a Guardian for Minor Children

One of the most important reasons to put together a Will or a Trust is to name a Guardian for minor children in the event something happens to both parents. The person or people you name as Guardian will take care of your children and manage all their needs including shelter, education, food, and day-to-day activities. The Guardian will also manage your children’s finances. Although a court proceeding is still necessary to officially appoint a Guardian, if you die without an estate plan naming a Guardian for your children, the Court may appoint someone you would not have chosen.

2. Decide How Your Money is Used

In addition to naming who is going to manage your children’s finances, your estate plan can direct how to use those funds should both parents die or become incapacitated. Both Wills and Trusts contain language which instruct the Executor or Trustee, respectively, how to use your funds for the benefit of your children and at what point your children can have access to the funds outright. You can custom tailor this for your family’s interests and values by setting out funds to pay for things such as higher education, religious school, music lessons, camp, etc. Properly drafted estate planning can provide financial protection for your children in the same manner that you would do if living.

3. Plan for Your Incapacity

Not only is estate planning critical to plan for your children in the event of your death or incapacity, but it is also equally important to have a plan in place for yourself. Powers of Attorney for Property and Powers of Attorney for Health Care both name an Agent and Successor Agent to manage your finances and medical decisions, respectively, in the event you become disabled or otherwise incapacitated. While your Will or Trust names a Guardian to take care of your children in the event of your incapacity, your Agent under the Powers of Attorney will handle your finances and medical care.  Without valid Power of Attorney documents in place, your loved ones will need to petition the court to name a Guardian to manage your finances and medical care. The Court-Appointed Guardian may not be who you would have chosen while you had capacity. Additionally, if you are incapacitated and there are young children in the mix, having to file for guardianship of you, as well as for your minor children, will make a stressful experience even worse for family and friends.

While planning for your death or incapacity might not be your first priority with a new baby or young children, completing your estate plan can provide peace of mind that your family is protected should the unthinkable happen.

If you have questions about estate planning, please contact attorney Lauren Kaplan at lkaplan@curlerlaw.com or (312) 952-1077 for a free consultation.

#FreeBritney and the Role of a Guardian

It is not very often that our practice of law becomes national headlines, but in recent months, the concept of “conservatorship” or guardianship (as it is called in Illinois and will be referred to in this blog post), has become a hot topic of conversation because of Britney Spears’s legal battle to regain her rights.

Britney Spears has been under legal guardianship for over a decade after suffering from mental health issues in the early 2000s. However, in recent years, a “#FreeBritney” movement began to protest Britney’s guardianship as well as Britney’s father acting as her guardian. There has been a lot of information circulating in the media regarding Britney’s rights and what role her guardian has in making decision on her behalf. While we are not opining on Britney’s guardianship, in this blog post, we will explore the role of a guardian and how the process of terminating a guardianship works in Illinois.

We previously explained the basics of a Guardianship, but for some quick background, a Guardianship is a legal proceeding through which a court appoints a guardian (a person, a non-profit agency or a financial institution) to make decisions for a person who does not have the mental capacity to make their own financial or health care decisions. In Illinois, you can have a guardianship of the person, guardianship of the estate or guardianship of both the person and estate.

Guardianship of the Person

The Guardian of the Person is responsible for making healthcare decisions on behalf of the person under guardianship or the “Ward”. This individual is responsible for ensuring that the Ward’s healthcare needs are met and will make decisions on behalf of the Ward, conforming as close as possible to what is believed to be what the Ward would have decided, if they were making their own decisions.  Among other decisions, The Guardian of the Person can make decisions to place the Ward in a facility such as a nursing home, if necessary. Every year, the Guardian of the Person files with the court an Annual Report providing the court with a status of the Ward’s health care, placement and their well-being.

Guardianship of the Estate

The Guardian of the Estate is responsible for the care and management of the Ward’s assets. The first step as Guardian of the Estate is to investigate the assets in the Estate to put together an Inventory for the court. This will allow the court to understand the value of the guardianship estate so that a yearly budget can be established for the use of the Ward’s funds. The Guardian of the Estate will transfer all the Ward’s liquid funds into a Guardianship Bank Account so that they can easily track the funds that go in and out of the Estate. Investments or real estate are sometimes liquidated, subject to court approval.

The Guardian of the Estate has authority to sign contracts on behalf of the Ward. For example, if the Ward owns any real estate that needs to be sold, the Guardian of the Estate, with the court’s permission, can enter into a contract for the sale of the property and sign as the Guardian of the Estate. Similar to the Guardian of the Person, the Guardian of the Estate can also make decisions relating to the Ward’s placement into a facility and can sign nursing home contracts, with the permission of the court, on behalf of the Ward.

Every year, the Guardian of the Estate is required to submit an Accounting to the court that shows money in and out of the estate. For that reason, as Guardian of the Estate, it is crucial to maintain good records of all transactions performed.

How to Terminate a Guardianship

On July 6, 2021, Britney testified in court that she did not know that she could petition for the guardianship to end. In Illinois, and in California where Britney resides, there are certain procedures the court requires to terminate a guardianship. It should also be noted that the majority of guardianships are granted when someone is at the end of life and experiencing dementia or other illnesses, which impair their ability to handle their own affairs. Therefore, termination of a guardianship is done rarely.

In Illinois, to terminate a guardianship, the guardian, the ward or any other “interested party” may file a petition for termination of a guardianship. The court will generally appoint a Guardian ad Litem to investigate the situation and submit a report to the court with their recommendation. The attorneys at the Law Office of Kate Curler LLC often act as Guardian ad Litem in Cook County and are experienced in this role.

A hearing will then be held where the parties will have the opportunity to present evidence as to why, or why not, the guardianship should continue. A medical report is not always required but can help the judge determine whether the ward continues to need a guardian. While the #FreeBritney movement has brought many of the issues with Britney’s guardianship to light, the fact is that the judge is not going to terminate the guardianship without specific procedures being followed.

As a final point, it is important to keep in mind that many of the court documents in Britney’s guardianship case are confidential so there is a lot of information that we, the public, are not privy to. In any event, guardianship should not be viewed as a method to strip the Ward of their rights and control their every movement. In fact, the Illinois statute states the goal of guardianship is to “encourage development of [the Ward’s] maximum self-reliance and independence.”

Guardianship is an important tool to help people who can no longer make decisions for themselves by taking care of their finances and health. We can only hope that the judge in Britney’s case has her reasons for maintaining the guardianship.  

This information is meant to provide a very brief overview of the roles of the Guardian of the Estate and Guardian of the Person. However, every guardianship case is different and will involve nuances that are not included here. If you are considering guardianship for a family member or loved one, it is important to work with an experienced guardianship attorney who can help you every step of the way. The attorneys at The Law Office of Kate Curler have extensive experience in every aspect of the Guardianship process.

If you have questions about guardianship, please contact our office at lkaplan@curlerlaw.com or (312) 952-1077 for a free consultation. 

What Does an Executor Actually Do?

When I am drafting Wills for clients, one of the questions I ask them to consider is who to name as Executor. In response, I am oftentimes asked, “well, what does an Executor actually do?” In this blog post, I explain the duties and responsibilities of an Executor of an estate so that you can make an informed and educated decision when putting together your estate plan.

For background, an Executor is the individual who administers the Decedent’s (the person who died) estate in Probate court, if the Decedent had a Will. If the Decedent died without a Will, that person is called an Administrator. The duties and responsibilities of an Executor and Administrator are essentially the same, but I will use the term Executor for purposes of this blog post. In Cook County and most Illinois counties, you must have an attorney represent you to serve as an Executor or Administrator.

The main role of the Executor is to handle the Decedent’s assets in the estate. The Executor, with the help of their attorney, will produce an Inventory of all assets in the estate. The assets could include personal property such as furniture, family heirlooms, cars, etc., bank accounts or investment accounts, or real estate. For personal property, the Executor is responsible for distributing these items to the Decedent’s heirs, pursuant to the terms of the Will. If there is no Will, these items should be distributed per agreement of the heirs or, if there is no agreement, as the Judge orders. For assets such as bank accounts, IRAs, investment accounts, or life insurance policies, the Executor can liquidate these assets and deposit those funds into a probate bank account or pass them onto heirs. For real estate, depending on if the Will provides specific instructions, the Executor may either transfer title of the real estate to the name of the heir(s) or sell the real estate and distribute the proceeds of the sale into the probate bank account.

The Executor is also responsible for destroying the Decedent’s credit cards, closing bank accounts, and changing the mailing address on all accounts to the Executor’s address. The Executor will also file final income tax returns and, if applicable, estate tax returns for the Decedent.

Additionally, the Executor handles the debts of the estate. In probate cases, creditors have six months to file claims against the estate. If they do not file a claim, an attorney can have these debts “disallowed”, and the Executor does not have to pay them. Claims filed after six months are also barred. If a claim is filed, depending on how much money is in the probate estate, the executor can pay these debts during those six months or wait until after the six-month period ends to pay the debts.  

After the six-month period is complete, the Executor, with the help of their attorney, will do a final accounting of the assets in the estate, showing the use of all funds and the funds left, and should then distribute the assets according to the Will, or the Illinois law, if there is no Will.

Please note that this list is not exhaustive, and every probate case can differ. For that reason, if you are named as an Executor, it is best to hire an experienced probate attorney to assist. The attorneys at the Law Office of Kate Curler have extensive probate experience and can help you every step of the way.

If you have questions about being an Executor, probate or estate planning generally, please contact our office at lkaplan@curlerlaw.com or (312) 952-1077 for a free consultation.  

Larry King's Will and Testamentary Capacity

In January, famed broadcaster and former CNN host Larry King died after contracting sepsis. At the time of his death, Larry King was in the process of divorcing his seventh wife, Shawn Southwick King. As we have discussed in prior blog posts, when someone dies, there are steps their loved ones must take to administer the estate. Sometimes estates will be administered in Probate Court and other times, such as with properly funded trusts, estates can be administered outside of court proceedings.

According to Ms. King, Larry had in place a “very watertight family estate plan”. However, news recently came out that in 2019, Larry had secretly drafted a handwritten will, known as a Holographic Will, that cut Ms. King out of his estate plan and left his estate to his five children. Notably, Holographic Wills are not valid in Illinois, however, this case will be decided under California law. The Holographic Will has been submitted to the Probate Court in California and Ms. King is actively opposing it arguing that Larry did not have the mental capacity to draft nor sign the Holographic Will in 2019. While we do not yet know how this will play out in court, it is important to understand what is required to draft a Will and other estate planning documents.

According to the Illinois Probate Act, section 755 ILCS 5/4-1, to draft a Will, you must be over the age of 18 and of “sound mind and memory”. This is known as “Testamentary Capacity”. But what does it mean to have “sound mind and memory?” Illinois courts have defined Testamentary Capacity as the “mental ability to know and remember the natural objects of [one’s] bounty, to comprehend the kind and character of property held, and to make disposition thereof according to some plan formed in the testator's mind”. In re Estate of Elias, 408 Ill. App. 3d 301 (1st Dist. 2011). In Illinois, when family members or beneficiaries contest a Will in court, such as what Ms. King is doing, the court will presume that the person had mental capacity until proven otherwise. If Ms. King was in Illinois Probate Court, the burden would be on her to prove that Larry did not have capacity when he drafted and signed the 2019 Holographic Will.

While there are other requirements to execute a Will including having two witnesses over the age of 18 sign the document who also attest that you have capacity to sign the document, the attorneys at The Law Office of Kate Curler first make sure our potential estate planning clients have Testamentary Capacity. As demonstrated by the Larry King news, it is not enough to just write down how you want to leave your estate. There are other requirements that must be met, and it is best to use an experienced estate planning attorney to create your estate plan.

If you have questions about Wills or other estate planning documents, please contact attorney Lauren Kaplan at lkaplan@curlerlaw.com or (312) 952-1077 for a free consultation.

Make Estate Planning Part of Your New Year’s Resolutions

New Year’s Resolutions can come in all shapes and sizes. In 2021, we have heard New Year’s resolutions that include, wearing “real pants”, less “doomscrolling” on twitter, and of course, seeing friends and family in person. However, a recent study conducted by fitness app Strava found that most people are likely to give up on their New Year’s resolutions by January 19. Many of us start the year off setting big goals only to give up when those goals seem unattainable, or even a little bit out of reach. If you have been thinking about creating or updating your Estate Plan as part of your New Year’s resolutions, now is the time to act! The attorneys at The Law Office of Kate Curler are happy to help you create or update your Estate Plan and make the process as smooth as possible.

4 Most Important Estate Planning Documents

Creating an Estate Plan does not have to be complicated and does not merely entail planning for your death. By putting together these four estate planning documents, you are responsibly planning for your future, ensuring that your loved ones can properly care for you in the event of your incapacity and that they can distribute your assets at the time of your death, per your wishes.

Powers of Attorney for Property and Powers of Attorney for Health Care both name an Agent and Successor Agent to manage your finances and medical decisions, respectively, in the event you become disabled or otherwise incapacitated. If you take nothing else from this blog post, remember that valid and properly executed Powers of Attorney can help avoid Guardianship. As we previously discussed, Guardianship can be a long and expensive court process where a judge must approve all decisions made on behalf of the person under Guardianship. Power of Attorney documents are a simple and cost-effective way to avoid this hassle.

Wills and Revocable Trusts are two Estate Planning documents that give instructions as to how you want your assets distributed at the time of your death. Wills, unlike properly executed and funded Trusts, pass through probate so your assets will be distributed through court procedures. A Trust becomes effective at the time you sign it and is a living document which you administer throughout your life. At the time of death, if your Trust is  properly funded, your assets will be immediately available to your named beneficiaries. There are different reasons to choose to draft a Will rather than a Trust and vice versa. The important thing to remember is that without proper estate planning documents, your assets will be distributed according to Illinois law which might not be according to your wishes. For example, if you prefer a charity over your cousin, who never called to see how you were during Covid, now is to formalize that in your Estate Plan!

New Year’s Resolutions oftentimes are hard to follow-through. The attorneys at The Law Office of Kate Curler can help check off an item from your to-do list and work with you to create an Estate Plan that fits your unique needs.   

If you have questions about estate planning, please contact attorney Lauren Kaplan at lkaplan@curlerlaw.com or (312) 952-1077.

Signing Your Will is Just a Zoom Away

In the wake of the Covid-19 pandemic, many of the activities and work that was once done in-person immediately turned virtual. Many people are still working remotely, having virtual birthday parties and weddings, participating in zoom exercise classes, or even renting an apartment having only done a virtual tour.  It should come as no surprise then that in Illinois, estate planning can now be done virtually as well.  

Though it may feel unconventional, remote notarization, signing and witnessing estate planning documents is legal in Illinois pursuant to Governor Pritzker’s 2020 Emergency Orders. However, to perform remote signings, there are specific requirements that need to be met. It is particularly important during this time period to hire an estate planning attorney who knows the current laws and what new steps they can take to keep you safe, by signing your documents virtually.

Some estate planning documents require a notary, such as a Power of Attorney for Property. To have a document notarized, under 5 ILCS 175/95-20, the requirement that the signor must “appear before” a Notary Public can now be accomplished virtually. Under the Emergency Orders, remote notarization can be done via two-way audio-video communication technology, like Zoom for example. The Illinois law requires that the Notary Public must see every page of the document being signed and examine the signature. Finally, the audio-video communication must be recorded and retained by the Notary Public for a period of not less than three years.

It is also possible to witness the signing of estate planning documents. Under the Illinois Law, deeds, last wills and testaments, trusts, durable powers of attorney for property and powers of attorney for healthcare can be signed in counterparts by the witness(es) and the signor, meaning the witness(es) and the signor can each sign his or her own copy of the document. This adds a step as well for the Notary Public as the Notary must be sent a fax or electronic copy of the signature pages of the document showing the witnesses signatures on the same date the document is signed by the signor.

Please note that the Emergency Orders allowing for remote signings are not permanent and may be lifted as the pandemic eases and more people begin to go back into the office. Before attempting to sign your estate planning documents virtually, it is important to contact an attorney who is well-versed in the current laws.  

The attorneys at The Law Office of Kate Curler have been staying up to date on the Governor’s Emergency Orders and are able to assist you with your estate planning in the manner you feel most comfortable. If you have questions about estate planning, please contact attorney Lauren Kaplan at lkaplan@curlerlaw.com or (312) 952-1077.

What is the Role of the Guardian ad Litem in Guardianship Cases?

In a prior blog post, we discussed adult guardianships including the basic guardianship types and who can be a guardian in Illinois. While we previously focused on the guardian, we now want to discuss another important player in the guardianship process – the Guardian ad Litem.

A Guardian ad Litem (GAL) is an attorney, or specially trained non-attorney, a Judge appoints in a guardianship case to look out for the best interest of the alleged person with a disability. A GAL serves as the “eyes and ears” of the court and gives his or her opinion as to whether guardianship is necessary and whether the proposed guardian is appropriate. The GAL meets with the alleged disabled person (the “Respondent”), to report back to the court if they are objecting to guardianship or want to enforce their other rights, such as having an attorney appointed for them.

A GAL is not appointed in every guardianship case. Generally, the deciding factor is whether the Respondent can come to court and agrees with the guardianship, without any family conflicts or cross-petitions.

The Investigation

To make a recommendation to the court regarding the guardianship and the proposed guardian, the GAL conducts an investigation.  The GAL meets with the Respondent (whether in person or virtually) to inform them of the guardianship action and his or her rights during the guardianship process. The GAL will talk to the Respondent about his or her views on the guardianship process, whether the Respondent feels guardianship is necessary, and whether the Respondent approves of the proposed guardian. It is important to remember that the GAL is an independent party, but the GAL’s job is to look out for the best interests of the Respondent. 

The GAL usually also interviews the individual petitioning the court for the guardianship (the “Petitioner”), and, if appropriate, any other third parties who could help the GAL determine  whether the guardianship and the proposed guardian are appropriate.

If they interview the Petitioner, The GAL may ask the Petitioner questions about their qualifications to be a guardian as well as basic history about the Respondent and why the Petitioner feels guardianship is necessary.

After the investigation is complete, the GAL provides an objective written report to the court advising the court of his or her findings, whether the GAL believes appointment of a guardian is necessary, whether the Respondent objected to a guardian being appointed for them or asked for their own attorney, and if they recommend the proposed guardian be appointed. In many cases, the role of the GAL ends after the court appoints a guardian. However, in cases that are particularly complicated, or involve disputes as to who should be the guardian, the Judge may keep the GAL on the case. 

Guardianship can be a complicated process with many nuances. The attorneys at The Law Office of Kate Curler have extensive experience representing the different parties to the Guardianship case as well as acting as the GAL. If you have questions about guardianship, please contact attorney Lauren Kaplan at lkaplan@curlerlaw.com or (312) 952-1077 for a free consultation.

When Does Your House Stop Being Your Home If You Have to Apply for Medicaid?

As we have discussed in previous blog posts, Medicaid is a state and federal program which pays medical costs for low income adults with or without children. However, most people do not realize that Medicaid also pays for nursing home care as well. For seniors who require long-term care and meet the financial eligibility criteria, Medicaid has a program which covers long-term care and pays for almost 100% of their nursing home costs.

In 2020, in Illinois, to qualify for Medicaid long-term care benefits, applicants must have less than $2,000 worth of non-exempt assets. As an elder law attorney, one of the biggest questions I am faced with when helping individuals with Medicaid planning, is “can I keep my house?” And in typical attorney fashion, the answer is: it depends. In this article, we are going to discuss situations in which you can keep your home while remaining eligible for Medicaid.

Homestead Property

If a Medicaid applicant who is applying for long-term care benefits to pay for nursing home care has a “homestead property”, i.e. their home, it will be regarded as an exempt asset under the Medicaid rules as long as it is occupied by the applicant, the applicant’s spouse or the applicant’s minor, disabled or blind child. The home will also be regarded as an exempt asset when the applicant intends to return to the home from a nursing home or medical institution. The Federal Medicaid guidelines use a subjective standard in making this determination and the house will be exempt as long as the applicant expresses an intent to return home.

If the Medicaid applicant does not intend to return to their home, it can still be exempt as homestead property if it is occupied by either:

1.    The person’s spouse;

2.    A dependent sibling of the person,

3.    The person’s child under age 21 or the person’s adult child who has a disability; or

4.    The person’s son or daughter who provided care to the person and resided in the home for the two years immediately before the person moved to the long-term care facility.

However, if the Medicaid applicant abandons homestead property without the intent to return, the property becomes non-homestead property and will be considered a non-exempt asset. Another important point to remember is that the Medicaid applicant’s income cannot be used to maintain this home; that income must be transferred directly to the nursing home (some exceptions are made for spouses.) If the occupant cannot afford to maintain the home, that should be a factor in a discussion of whether the home needs to be sold.

Transferring Homestead Property

Be careful if you are considering transferring your home as a gift to avoid it be counted as an asset. Medicaid treats the transfer of the applicant’s home like any other asset and you may incur a penalty making you ineligible for Medicaid for a period of time. Medicaid provides a five-year “lookback” period in determining whether the applicant transferred assets for less than fair market value. Timing of the transfer and when the applicant applies for Medicaid is also very important.

If done correctly, the applicant may be able to transfer the home to the following classes of people without incurring a penalty:

1.    The applicant’s spouse;

2.    The applicant’s minor child or disabled adult child;

3.    A sibling with an ownership interest in the home who has been living in the home for at least one year before the applicant went to a nursing home; or

4.    An adult child with no disabilities who has been living in the home for at least two years prior to the applicant going to a nursing home, AND, who cared for the applicant, allowing the applicant to live at home rather than in a nursing home. 

It is important to reiterate that transferring your home to the above individuals does not guarantee the transfer will be exempt from Medicaid consideration. If Medicaid finds that the transfer was done solely for the purpose of making the applicant eligible for Medicaid, it may be counted as an asset and you may incur a penalty. A Medicaid Planning attorney or benefits specialist is essential to ensure your application is done correctly and your assets are properly titled to better your chances of approval. 

While this article is meant to provide general information about Medicaid asset exemptions, these rules are not absolute and should not construed as legal advice. If you have questions about Medicaid, Medicaid Planning or asset exemptions, please contact attorney Lauren Kaplan at lkaplan@curlerlaw.com or (312) 952-1077 for a free consultation.

How A Geriatric Care Manager Can Help Families and Caregivers

In numerous areas of life, we turn to professionals to help us navigate unfamiliar territory. For example, you may use a financial advisor to help understand your finances and plan for the future, a CPA to do your taxes, or, you may contact an attorney to help with your legal needs.  

However, when it comes to caring for our seniors, many people try to navigate through the world of elder care options, public benefits, and medical care without assistance. Just as a financial advisor can help you handle your finances; a geriatric Care Manager can help guide you through the world of elder care so you can provide the best possible care for your loved one.

What is a Care Manager?

A geriatric Care Manager is a professional who can provide practical help, advice and advocacy for seniors and caregivers. A Care Manager is an individual who has significant training in aging and senior care generally as a social worker, nurse, or other healthcare professional. Some care managers who are licensed RN’s might also call themselves “Nurse Advocates.”  Care Managers are trained to identify any areas of concern for the senior and find resources to help the family caregiver or family create a plan so that the senior can live as safely as possible.  

Ways a Care Manager Can Help  

Some of the ways that a Care Manager can assist you in caring for your loved one are:

• Evaluating the senior’s current living situation and determining if it is the best and safest option;

• Arranging in-home care and home maintenance services including yardwork, Meals on Wheels and transportation;

• Coordinating medical treatment by making appointments, attending doctor visits, recommending doctors and arranging for transportation;

• Providing regular check-ins and assessments to see how the senior is doing and review their medication intake and vitals, if necessary;

• Helping your loved one understand their financial, medical and legal needs and offering referrals to other professionals;

• Creating short-term or long-term care plans;

• Assistance with moving your loved one to an assisted living facility or nursing home; and  

• Providing stress relief for the family caregiver.

Additional Things to Keep in Mind

As opposed to some other types of professionals, Care Managers do not have state or federal licensing requirements or approval, though most have certifications in other fields such as social work or nursing. When looking for a Care Manager, do your research and check their references. Additionally, it is important to note that Care Manager services are usually not covered by insurance, Medicaid or Medicare. Most Care Managers charge hourly rates that are paid for out-of-pocket. However, many people find that using a Care Manager saves money in the long run because they can offer their expertise and support to struggling or stressed out family caregivers, to create a care plan specifically tailored to the senior’s needs.

The Law Office of Kate Curler, LLC works closely with Care Managers all over the Chicagoland area. If you believe that your family could benefit from working with a Care Manager, or if you have any questions about Care Managers, contact attorney Lauren Kaplan at lkaplan@curlerlaw.com or (312) 952-1077 for a free consultation.

Resources to Ensure That Your Voice is Heard on November 3rd

Election day is quickly approaching. This year, more than ever, it is important to make sure that you have a plan to cast your ballot in a safe and healthy way. Recently, the organization, Justice in Aging sent out an e-mail listing multiple resources to make sure that older adults and individuals with disabilities are able make their voice heard in this election. We have gone through these resources and summarized them below.

-          The National Council on Aging put together a state by state guide for Healthy Voting. One of the tips the National Council on Aging offers here is to vote by mail. However, the guide also gives advice for staying healthy if you vote in person. This includes wearing a mask, maintaining physical distance of 6 feet between you and other voters or poll workers, and washing your hands before and after you cast your ballot.

-          The Centers for Medicare and Medicaid Services (CMS) issued a memorandum regarding nursing home residents’ right to vote. In the memo, CMS lists the federal laws that affirm the right of residents to vote. The memo states that nursing homes should have a plan to make sure that residents are able to exercise their right to vote whether in person or by mail. The memo additionally provides resources for nursing home residents to file a complaint if they believe their right to vote has been violated.

-          The National Long-Term Ombudsman Resource Center posted a Voting Resources guide on its website. The website offers resources for both nursing home residents and ombudsmen, such as advocacy programs, Voter ID requirements by states and programs for ombudsmen to implement to help make sure the right to vote is protected in nursing homes.   

-          The American Bar Association Commission on Law & Aging and the Penn Memory Center offers a Quick Guide for Assisting Cognitively Impaired Individuals with Voting. Importantly, this guide explains that a medical diagnosis of cognitive impairment does not disqualify a person from being eligible to vote. The authors offer several helpful tips when assisting a cognitively impaired individual with voting including, listening carefully, speaking clearly, reading body language, and timing the discussion on voting appropriately.

-          The National Guardianship Association offers helpful advice for guardians to help protect the rights of the individual under guardianship. Illinois does not have any disability-restrictions on the right to vote in elections. As such, guardians should ask the person under guardianship if they wish to vote, and if so, discuss different voting options with the individual so that this goal can be accomplished.

-          The Arc, an organization dedicated to protecting the human rights of people with intellectual and developmental disabilities, issued a Disability Voter Guide. This guide is meant to help people with disabilities understand, in part, the voting process, where to learn about the candidates, how voting works and what to do if your voting rights are violated.

There is so much at stake in this upcoming election. These resources are incredibly helpful to understand your rights and make sure you have a plan to vote on November 3.  If you have any questions about your voting rights, please contact Attorney Lauren Kaplan at lkaplan@curlerlaw.com or (312) 952-1077 for a free consultation.

What is Probate and Why Do People Want to Avoid It?

In previous blog posts, we emphasized the importance of proper estate planning so your loved ones know how to distribute your assets at the time of your death. One of the main reasons we advise our clients to invest time and money in proper estate planning is so that their property does not go through the Probate court process. This post will give a brief background of Probate, why some people seek to avoid it, and steps you can take to turn your property into non-probate assets.

Probate at a Glance

Probate is the process through which a dead person’s, called a “Decedent”, assets are distributed to his or her heirs through the Probate Court. However, it is not as easy as submitting a Will to the court and then waiting for a check. Before any of the Decedent’s property can be distributed, somebody needs to be appointed either the Executor of the estate if the Decedent had a Will, or Administrator of the estate if the Decedent did not have a Will. For purposes of this blog, we will refer to that person as the “Representative.” The Representative is responsible for submitting the Will to the Probate Court, if applicable, sending notice to  creditors and beneficiaries, identifying and inventorying the Decedent’s property, appraising and potentially selling the Decedent’s real estate, paying the Decedent’s taxes and debts and, then finally distributing the assets according to the Decedent’s wishes in the Will, or by Illinois law.

Why Do People Want to Avoid Probate?

While Probate is sometimes necessary to distribute a Decedent’s assets, there are valid reasons why people seek to avoid Probate Court when creating their estate plans.

First off, Probate can be an expensive process. There are court filing fees, creditor notice fees and attorney’s fees, if you hire an attorney to help with the probate process. Additionally, the Representative of the estate is entitled to compensation for their time and expenses paid to carry out their role in administering the estate. Secondly, the probate process can take a long time. On average, a probate case takes between six to nine months. During this process, the Decedent’s heirs will not have immediate access to the Decedent’s money and may be responsible for paying for the Decedent’s funeral, burial, and maintenance and insurance for real property or vehicles, among other expenses. These items can be costly and can cause huge stresses on family members during a difficult time.

How Can I Avoid Probate?

As an initial matter, if you own less than $100,000.00 in assets, you can avoid the probate process in Illinois by completing and signing a Small Estate Affidavit. With a Small Estate Affidavit, the Decedent’s property can be transferred without court involvement.

However, even if you own more than $100,000.00 in assets at the time of your death or own real property, there are other ways to plan so your assets do not pass through probate*:

1.      Put your assets into a Revocable Trust. With a properly drafted and funded Revocable Trust, your assets will be titled in the name of the trust and will avoid passing through probate.

2.      Designate a beneficiary for insurance policies, investment, and retirement accounts.  At death, the assets or proceeds will automatically transfer to your named beneficiary.

3.      Real Estate held jointly with survivor’s rights will not go through probate. The property will pass directly to the joint owner.

4.      Payable Upon Death or Transferable upon Death notations in paperwork for vehicles, bank accounts, investment and retirement accounts will help these assets go straight to the beneficiary and avoid probate.

No matter your thoughts on the Probate process, having a properly drafted estate plan will ensure that your assets are distributed according to your wishes. The Law Office of Kate Curler LLC is prepared to put together an estate plan that suits your needs. If you have questions about probate or planning generally, please contact Attorney Lauren Kaplan at lkaplan@curlerlaw.com or (312) 952-1077 for a free consultation.

*This list is not exhaustive, and you should consult with an attorney to make sure all of the assets you want to avoid probate are properly titled.

In Memory of Justice Ruth Bader Ginsburg (“RBG”)

The Law Office of Kate Curler was extremely saddened to hear of the passing of Justice Ruth Bader Ginsburg, known to many as “Notorious R.B.G” last Friday. RBG was a trailblazer who spent her life as a litigator and Supreme Court Justice fighting for women’s rights and working to ensure that all people were afforded equal protection under the law. In this week’s post, as a tribute to RBG, we are giving a little history lesson and talking about the Supreme Court case of Reed v. Reed. Reed was RBG’s first case to make it to the Supreme Court years before she became a Supreme Court Justice. It was also the first time the Supreme Court ever struck down a law that treated men and women unequally. Interestingly, this case also happens to involve one of our areas of practice – estate administration.

In Reed v. Reed, the Idaho Probate Code specified that in appointing administrators of an estate “males must be preferred to females”. After their son’s death, Cecil Reed was named the administrator of his son’s estate instead of Sally Reed. Sally challenged the law, and in a unanimous decision, the Supreme Court struck down the law and held that treating men and women differently under the law was unconstitutional under the Equal Protection Clause of the 14th Amendment. After this decision, hundreds of laws in the U.S. Code that treated women differently than men with no basis were changed. This case also set the stage and legal framework for future Supreme Court decisions to recognize discrimination on the basis of sex, whether female or male, as a violation of the Constitution. The decision in this case, and the many more that followed, were made, in no small part, due to the valiant efforts and jurisprudence of RBG.

On a personal note, RBG was, and will continue to be, a huge inspiration to me as a woman and attorney. When RBG was a law student at Harvard, she, along with the 8 other female students, was asked by the Dean what she was doing at the law school, taking a seat that could have been held by a man. While it is hard to imagine that scenario today with the majority of law students being women, without the tireless work that RBG did to fight inequality, The Law Office of Kate Curler, owned and operated by women, would not be here today. Imagine trying to run a business without being able to open your own credit card.

Every day as our firm works to advocate for senior citizens, we try to emulate RBG’s never-ending quest for justice. On the wall of RBG’s office hangs a phrase from the Book of Deuteronomy, “Justice, Justice You Shall Pursue.” RBG spent her life pursuing, and fighting for, justice for all people. May her memory inspire a new generation of women and men to fight for justice and equal treatment under the law.

In loving memory of Justice Ruth Bader Ginsburg. May her memory be a blessing.

What Should I Look For in a Nursing Home Contract?

There are many things to consider when deciding upon a nursing home for a loved one. Important things to keep in mind are the location of the nursing home, the activities provided, any special dementia services offered, as well as physician services.  Once you have spent time researching the best nursing home for your loved one, the contract might seem like something simple to just sign and move-in. However, as with any contract you are signing, it is important to read the terms of the nursing home contract carefully to know exactly what is included and that your loved one’s rights are protected. Below are some specific considerations to look out for when you are reviewing a nursing home contract.

1.      Who is signing the contract?

At the Law Office of Kate Curler, one of the most important things we look for in a nursing home contract is knowing who is responsible for payment. If you are signing a nursing home contract for a loved one, beware of language which would make you responsible for payment, such as naming you as a “guarantor”, “responsible party”, or “payor.”  This language is prevalent in nursing home contracts.  If payment is not made, nursing homes may seek to enforce such provisions against the person who signed the contract.

In Illinois, children of a person in a nursing home are not required to pay for their loved one’s care. However, if you sign the contract as a responsible party, then the nursing home might sue you for payment. For this reason, it is important you consult an attorney before signing a nursing home contract.

2.      Liability/Arbitration.

A nursing home can be held liable for negligence and injuries resulting from actions, or inaction, on the part of the nursing home itself, or its employees. However, many nursing homes will try to get around this with language in their contracts. When reviewing a nursing home contract, look closely for any language that would limit or even waive the nursing home’s liability for negligence and personal injury. Additionally, look out for provisions requiring arbitration to resolve disputes. At the Law Office of Kate Curler, we often counsel client to cross out arbitration provisions in contracts.

3.      Daily Rate and Supplemental Services

A nursing home contract should clearly set out the daily rate as well as what is included in that daily rate. Additionally, the contract must list any additional fees the nursing home will charge for supplemental services. Some examples of supplemental services may include expanded cable television, laundry, internet, beauty or barber shop services and meal delivery to your room. Keep in mind, however, that the contract should not include charges for any services covered by Medicare or Medicaid. Nursing homes also cannot charge additional fees for services and items which should be included in the daily rate including nursing services, dietary services, activities, room and bed maintenance services, routine personal hygiene items, and services provided by the nursing home to help maintain the resident’s mental health.

4.      Resident’s Rights

Illinois law requires a nursing home to provide a statement of rights at the time of the resident’s admission to the nursing home. Some of these rights include*:

-          The right not to be deprived of any constitutional rights including free speech, the right to vote (Election day is November 3rd), the right to practice one’s religion and the right to be free from unlawful discrimination;

-          The right to send and receive mail, use the phone and have visitors;

-          The right to manage your own financial affairs;

-          The right to retain and use your personal property for your use or wear at the nursing home;

-          The right to select your own physician; and

-          The right to privacy in one’s room and in medical or personal care.

When reviewing a nursing home contract, look for a statement of resident rights to make sure you are familiar with your loved one’s rights.

At The Law Office of Kate Curler LLC, we have experience reviewing and negotiating nursing home contracts to ensure that your loved one knows exactly what you are signing and is comfortable with the terms of the contract. If you have questions about nursing home contracts or need further assistance, please contact Attorney Lauren Kaplan at lkaplan@curlerlaw.com or (312) 952-1077 for a free consultation.

*This list is not exhaustive. Consult or an attorney for more information. For further reference, some of the relevant regulations include 42 CFR Part 483 and The Nursing Home Care Act (NHCA) 219 ILCS 45/1-101.

Be Wary of Covid-19 Elder Abuse Scams

From the start of the Covid-19 pandemic, we have known seniors face an increased risk of serious illness and death from Covid-19. However, in addition to the increased risk of illness, there are added social effects and hardships that isolated seniors face while we continue to social distance. Social isolation for seniors often leads to them being targeted by, and becoming victims of, Covid-19 scams.

E-mail and telemarketing scams are not new. However, during the pandemic, scammers are taking advantage of the fact that seniors are more isolated than ever and are using the opportunity to prey on this vulnerable population. Back in March, Illinois Attorney General Kwame Raoul released a consumer alert warning Illinois residents of five Covid-19 scams which include cyber scams, telephone and text scams, and counterfeit products, to name a few. Some Covid-19 scams include people offering “coronavirus test kits” to older adults to steal their financial information, advertising fake drugs and vaccines for Covid-19, scammers posing as the IRS requesting bank information to release stimulus checks, and the classic charity scam where fake charities are set up to steal money from unassuming, sympathetic people. Additionally, the Federal Trade Commission (“FTC”) received reports that WhatsApp and Facebook users are receiving messages from what appear to be big companies offering money, food coupons and other support.

These scams are meant to prey on vulnerable seniors during what is already an extremely difficult time. However, there are some steps you can take to avoid you or your loved one becoming a victim of one of these scams, including:

1.      If you receive an email, do not click on any link where you do not recognize the sender.

2.      Do not provide personal information, including bank accounts or social security numbers over the phone unless you are certain you are speaking with a trusted organization.

3.      Ignore anyone contacting you claiming to have a cure or vaccine for Covid-19, or an at-home test with instant results. Check the CDC website for up-to-date information regarding the coronavirus if you are not sure about information you are receiving. If it seems too good to be true, it probably is.

4.      Be cautious of people calling you to request your Medicare, Medicaid or Social Security number. Neither Medicare, Medicaid, the IRS nor the Social Security Administration will call to threaten you, demand immediate payment or just request your information. You can always call the agency directly if you are unsure.   

5.      In general, if you have a gut feeling that a call or an e-mail seems dubious, do not provide any personal information, and do not click on the link.

During these unprecedented times, it is more important than ever to be vigilant when providing personal information to others or accepting what appears to be “legitimate” services or benefits. Following these tips will help you avoid falling victim to a scam.

If you think you have been a victim of a scam, The Law Office of Kate Curler is prepared to help you. Our attorneys often help families with these issues and have a wide network of consumer rights attorneys and connections at federal and state agencies to help. There are also several ways you can report a scam including through the Illinois Office of the Attorney General, the Federal Trade Commission, or the FBI Internet Crime Complaint Center.

If you have questions about Covid-19 scams or need further assistance, please contact Attorney Lauren Kaplan at lkaplan@curlerlaw.com or (312) 952-1077 for a free consultation.

Guardianship Basics

One of the most difficult decisions that families can face is the decision to file a Petition for Appointment of a Guardian. This becomes necessary when a loved one cannot make their own medical decisions or manage their finances. Most often, the person for whom the family is seeking guardianship is an elderly parent or relative. However, it can also be someone who has lost capacity because of an accident, illness or addiction. You can also have a guardianship over a minor or an adult suffering from mental illness. In this post, we explain what guardianship is, who can be a guardian, as well as some ways to prepare in advance to avoid guardianship.  

What is Guardianship?

Guardianship is a legal proceeding through which the court appoints a guardian to make decisions for a person who does not have the mental capacity to manage their healthcare or finance decisions.

Basic Types of Guardianship

In Illinois, you can have a guardianship of the person, guardianship of the estate or guardianship of both the person and the estate. A guardian of the person is appointed when an individual with a disability cannot make or communicate responsible decisions regarding his or her personal care. The guardian can then make decisions on behalf of the incapacitated individual including decisions about medical treatment, where they live, benefits, and other needs. A guardian of the estate is appointed when an individual is unable to make or communicate responsible decisions regarding the management of their finances and/or property. The guardian of the estate is charged with overseeing financial matters on behalf of the incapacitated person and is authorized to make decisions about their funds and property.

Illinois courts also appoint Limited Guardians of the Estate and Person, when a person needs some help with decision-making but has other powers reserved to them, where they can act on their own.

Who Can Be A Guardian and How is a Guardian Appointed?

A person can be a guardian if they are over the age of 18, a legal resident of the United States, of sound mind and is not a person with a disability under the law. Additionally, the proposed guardian must not have been convicted of a felony unless after reviewing the facts of that offense, the court finds appointing the guardian to be in the best interest of the person with a disability. However, the court will not appoint a person a guardian if they have been convicted of a felony involving harm or threat to a child, elderly person or a person with a disability.  That said, the individual still needs be found disabled by the court through proceedings during which the court will determine whether the individual is in need of a guardian and whether the proposed guardian is suitable.

Is Guardianship always necessary?

Though guardianship is an effective court process to ensure that your loved one is taken care of, one way to potentially avoid needing guardianship is by ensuring you have power of attorney documents.  A Power of Attorney for Health Care and a Power of Attorney for Property give your agent many of the same powers as a guardianship, without court involvement.

While petitioning the court to be a Guardian over a loved one can be hard and oftentimes invoke strong emotions, sometimes it is the only way to ensure your loved one is safe and financially secure. The Law Office of Kate Curler’s attorneys takes a holistic approach to come up with the best plan  for the person under guardianship to preserve as much independence for the senior or incapacitated person as possible, as long as they and their assets are safe.

This post is meant to give you basic information about Guardianship in Illinois. If you have questions about Guardianship, please contact Attorney Lauren Kaplan at lkaplan@curlerlaw.com or (312) 952-1077 for a free consultation.

The contents of this blog post are intended to convey general information only and not to provide legal advice or opinions.