The Illinois Probate Act was recently amended to include a new section entitled, “Presumptively Void Transfers.” 755 ILCS 5/4(a) et seq. The effective date of the statute was Jan. 1, 2015. The intended purpose of the legislation was to prevent unrelated caregivers from taking advantage of elderly or disabled persons in their making testamentary gifts under duress or under less than forthright circumstances.
In essence, the new statute states that if a “transfer instrument” is challenged by a court proceeding, there is a rebuttable presumption that the transfer instrument is void if the transferee is a “caregiver” and the transfer exceeds $20,000. 755 ILCS 5/4(a)-10(a).
According to the statute, once the presumption is in place, it can be rebutted by the caregiver in two ways:
(1) The caregiver, beneficiary, proves by clear and convincing evidence that the transfer was not the product of fraud, duress or undue influence; or
(2) By showing that the beneficiary’s share under the transfer instrument is not greater than the beneficiary’s share already in the effect prior to becoming a caregiver. 755 ILCS 5/4(a)-1(15)(2) and 10(a).
If the presumption is present, but the caregiver cannot rebut the presumption by a clear and convincing evidence level, which is higher burden of proof than the preponderance of the evidence (more probably true than not), the transfer instrument would then be considered void and unenforceable. The statute does not apply to “family members.” That would mean that a gift to a family member would not be scrutinized by a presumption under this law.
A “family member” is defined by the statute as a spouse, child, grandchild, sibling, aunt, uncle, niece, nephew, first cousin or parent of the person receiving assistance. 755 ILCS 5/4(a)-5(2).
Many times nursing home residents or long-term care residents and both the elderly and disabled are exposed to ill-suited caregivers. Most times caregivers are essential to the elderly and the disabled for their everyday needs, but too often it happens that caregivers have other more selfish motives that can give rise to fraud and disenfranchisement of the elderly or disabled.
It should be noted that the law applies to both caregivers who are paid and those who are not paid. There are for-profit companies that supply caregivers to those in need. For those who are require caregivers, it is imperative that a careful evaluation of the company and the particular caregiver is given a very careful review before committing.
One problem with the statute is that it might apply to the elderly or in elder abuse situations, but only if the transfer were more than $20,000 in value. In a recent 3 article, Jeffrey R. Gottlieb points out that “the law could produce the odd result of ignoring the $20,000 transfer while presumptively voiding a $20,001 transfer in its entirety, even on otherwise identical facts.”
Another questionable outcome of this elder abuse statute is who is a caregiver by definition? A caregiver could be any non-related party, including a friend or neighbor or relative not listed in the definition.
In order to prove up the rebuttable presumption, it must be done in a civil lawsuit. The statute refers to a challenge of the transfer, but that must be done in a courtroom. The question remains as to who does the challenge rest with? If the transfer was done by a trust instrument, a will or a deed, would the challenge be up to the trustee or executor of the trust or will or another relative? Those questions remain unanswered at the moment.
The burden of proof part of the statute has been laid out. However, it must be noted that the burden of proof, “clear and convincing” is a higher burden and once the presumption has been applied, the burden of proving that there was no fraud or duress is placed on the caregiver. The statute of limitations is also something to be examined carefully. The civil suit or action challenging the transfer must be brought within two years unless there is a will; in that case, the Illinois Probate Act calls for a will contest to be initiated within six months after the admission of the will to probate. 735 ILCS 5/4(a)-10(b).
Lastly, the effective date of the statute (1/1/15) is complicated by when the transfer was created and when it was vested or the transfer completed. That would technically include transfers that may be considered fraudulent or under duress that were completed before that start date, Jan. 1, 2015. That issue will need to be resolved by amendment or case law.
In handling elder abuse cases, nursing home abuse cases and other similar lawsuits, it is important to protect the infirm, the elderly and the disabled as much as possible. Family members should be on the lookout for any unsavory acts or actions that may show signs of self-serving interests, fraud, duress or manipulation carried out by caregivers who are not related to the person. Mr. Gottlieb’s very well-written article can be found at Illinois Bar Journal’s January 2015 Edition; Volume 103, No. 1; www.isba.org/ibj.
Kreisman Law Offices has been handling nursing home abuse cases, elder abuse cases and nursing home negligence for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence or abuse of a medical or nursing employee for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Robbins, Evergreen Park, Countryside, Country Club Hill, Chicago (Irving Park, Hyde Park, Humboldt Park, Jefferson Park, Koreatown, Lincoln Park, Oz Park, North Town, North Park, Chinatown, Morgan Park, Sauganash, Sheffield), Deerfield, Crestwood, Forest Park, Hoffman Estates, Hillside, Barrington, Bartlett, Bellwood, Bensenville, Winnetka, Westchester and Wheeling, Ill.
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