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Articles Tagged with Illinois

The Center for Disease Control and Prevention (“CDC”) and the Illinois Department of Health (“IDPH”) have set guidelines for healthcare facilities, including nursing homes, and other long-term care facilities amidst the current COVID-19 pandemic we are experiencing. These guidelines include visitor restrictions for the facilities. In a nutshell, if you are not considered an essential healthcare employee or a compassionate care visitor for end of life situations, you are not going to get near one of these facilities until…well we are not sure.

These guidelines have been put in place for the safety of the residents and employees, and understandably so. On the other hand, this guidance is missing clarity. The states (including Illinois) and, in-turn, the facilities are left to interpret what the definition of an essential healthcare employee and a compassionate care visitor means. Is a third-party caregiver an essential healthcare employee? Is being placed in hospice, in and of itself, considered an end of life situation? Based on experience over the past few weeks, the answer is no. It should be noted, though, that there is no real legal authority stating such. We are facing a time where loved ones could pass away alone because a facility did not interpret the guidelines to allow a visitor in such a situation. Seeking the courts guidance on the matter may be necessary. Until then, the facilities are given the freedom and flexibility to interpret the guidelines as they see fit.

What can you do until then? Often times, loved ones of the residents of nursing homes and long-term care facilities provide care, love, and encouragement to them. During this time, more than ever, this encouragement and love is essential to the resident’s well-being. If you have a loved one in a facility, what can you do during this critical time? Technology has allowed us to connect with people in ways we never could before. Calling and video chatting with loved ones can provide them with the emotional support they need. Just the sound of a loved one’s voice can bring a smile to a resident’s face.  Online games can be played together as well. While we are getting back to the basics during this time, writing a good old fashioned letter is a great option as well.

One of the most important, but most often overlooked estate planning documents, are the Powers of Attorney. Powers of Attorney fall into one of two categories: (1) Powers of Attorney for Property and (2) Powers of Attorney for Health Care. Essentially a Power of Attorney legally authorizes a trusted family member or friend to make decisions on your behalf in the event that you become incapacitated or are unable to make decisions on your own. Powers of Attorney are powerful documents that can protect you and your family from the need for expensive guardianship proceedings.

Although Powers of Attorney for Health Care are regularly accepted by hospitals and doctors, many banks and financial institutions are making it harder and harder to use a legally valid Power of Attorney Document. If a manager at your financial institution believes, in good faith, that your Power of Attorney is no longer valid you may be left with no choice but to petition a court for guardianship.

To avoid this from happening we advise that you review your Powers of Attorney to ensure (1) the your Power of Attorney documents are up to date and include the most recent statutory language; (2) that your Powers of Attorney are no more than 5 years old; and (3) that your Power of Attorney allow sufficient authority for your agent to amend trust documents, make gifts, and designate or change beneficiaries.

When clients think about Asset Protection Off-shore trusts or some elaborate scheme of trusts and other entities usually come to mind.  However, there are several vehicles that are less complicated that a client can use that will probably suffice for her protection.

Here are some strategies that are not complicated and relatively easy to implement:

  1.  Purchase an Umbrella policy in addition to a Homeowners policy for your home.  An Umbrella policy is very inexpensive and will protect you for claims that exceed other policies for your home and auto.

When a guardian is appointed for a person with a disability (the “ward”), the guardian is required to follow certain guidelines.  There are two types of guardianships in Illinois, and they each have different rules to follow.

The first is “guardianship of the person.”  The guardian of the person is responsible for securing the support, care, comfort, education, and professional services for the ward.  Pursuant to the Illinois Probate Act, the guardian of the person is also expected to assist the ward in the development of maximum self-reliance and independence.  Despite the fact that guardians seemingly have a substantial amount of authority, they are not given carte blanche permission to make every decision associated with the ward.  A guardian is still expected to listen to the wishes of the ward and make an effort to carry out those wishes.  Furthermore, a guardian cannot change the residential placement of the ward without explicit authorization from the court.  This prevents a guardian from being able to place a ward in a nursing home without a thorough investigation by the court to determine if that home is in the ward’s best interests.

The second type of guardianship is called the “guardianship of the estate.”  The estate guardian is responsible for handling the finances and assets of the ward.  He/she is expected to manage the estate frugally and apply the income and principal of the estate so far as necessary for the comfort and suitable support and education of the ward (755 ILCS 5/11a-18).  The guardian may make payments directly to the ward, or to a third party to pay for things like rent, food, clothing, entertainment, etc.  Once again, this is a significant amount of power, but it is not without its limits.  A guardian of the estate can only spend the ward’s assets on things that directly benefit the ward or the ward’s minor or adult dependent children.  If the guardian is not following these guidelines, it may be grounds for the guardian to be removed.

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