Proposed Illinois Law Seeks to Protect Seniors from Caregivers Who Would Take Advantage of Them
Illinois Senate Bill 1048 recently passed both Houses of the Illinois General Assembly and was sent to the Governor on June 27, 2014. The bill that is expected to be signed by Governor Quinn amends the Probate Act of 1975 by adding a new “Presumptively Void Transfers” Article to the Act which would apply to “transfer instruments” (which includes a will, living trust, beneficiary designation or other means by which someone might inherit property from a person who dies) that are signed starting January 1, 2015.
The new law provides that all gifts of property to caregivers effective on an elderly person’s death are presumed void if the amount given to the caregiver is greater than $20,000. The intent and purpose behind the law is to protect seniors and their families from caregivers who would try to endear themselves to the senior for the purpose of influencing them to make gifts to the caregiver by their will or other estate planning instruments.
The law defines a “caregiver” as a person who voluntarily (without being paid), or in exchange for compensation (being paid), has assumed responsibility for all or a portion of the care of another person who needs assistance with activities of daily living. The law’s definition of caregiver does not include a family member of the person receiving assistance. As such, it does not apply in the case of gifts or bequests to family member caregivers.
A caregiver who is entitled to or is otherwise deserving can still receive a gift if they can either show that their share under the transfer instrument is not greater than the share of the elder’s estate that they would already be entitled to prior to becoming the caregiver, or establish under a high burden of proof that the gifts or transfers made to them were not the product of fraud, duress, or undue influence.
The law provides that a caregiver who tries unsuccessfully to overcome a presumption that a gift is void shall bear the costs of the proceedings, including, without limitation, reasonable attorney’s fees. Additionally, the law creates a civil remedy by which the family of a senior can recover any gift to a caregiver that was improper, but the challenge must be filed within two years of the date of the senior’s death.
Hopefully, with the passage of Senate Bill 1048, caregivers whose motive is to take advantage of seniors will not be able to get away with it, at least in Illinois. If and to the extent that the law proceeds in protecting seniors from those “wolves in sheep’s clothing,” it will have accomplished a substantial good.
On the other hand, it’s also easy to imagine a situation in which the operation of the law could produce unfortunate and unintended results. For example, consider the situation of a widowed or single person who has received little or no care or support from family members (in the case of a single elder without children, it’s easily possible that the nearest relatives could be nieces and nephews, or even cousins, with whom the elder has never had a close relationship), but who has enjoyed a close relationship with a companion or lifelong close friend who has stood by his or her side and provided loving care and comfort over the course of a prolonged illness. If that person then signs a will or any other type of document that leaves more than $20,000 to that companion or friend, it would be a presumptively void transfer.
In that situation, the law may not operate as a shield protecting the close family, but rather as a sword that could be wielded by more distant relatives interested in making sure that they inherit as much as possible, even if that is clearly not what the elder would have intended. The law’s sanctions against the companion or friend for supporting what their companion or friend did for them are such that it might be difficult for many of them to stand their ground, since they would face the prospect of having to (a) pay both sides’ attorneys’ fees for what could be very expensive litigation, and (b) getting sued for any gifts made to them during the companion or friend’s lifetime.
As a result, the law should also have the effect of imposing a burden on elders who, for what could be very good and understandable reasons, want to choose in their estate plans to favor a companion or friend who has cared for them in the later stages in their lives. Seniors need to be aware of the law, and to proceed with an awareness that, in any “he said, she said” lawsuit brought after their death, the one person whom a judge or jury would most want to hear from in determining whether the presumption that their intended transfer is void has been successfully overcome is them.
Our recommendation to clients in that situation will be that they have us interview them, confidentially but in the presence of a “videographer” (a court reporter with a video camera), regarding the facts and circumstances that led them to their decision to favor the companion or friend who has cared from them. That “straight from the horse’s mouth” testimony, if properly legally preserved, will provide the best assurance that their intentions will, in fact, be carried out.