i am now being sued in chancery court for breaching a settlement agreement that was made in probate court over a will contest which i was a party of. the settlement order and dismissal entered at the time stated the probate court retains jurisdi...
Yes you should and probably are required to have the matter transferred to the Probate Court. As a general rule, the Judge that enters a particular order is the Judge who is supposed to hear any subsequent matters relating to that order. While it would appear that the basis for the Plaintiff bringing the action in Chancery Court is the argument that the settlement agreement is contractual in nature and they are seeking some type of injunctive relief. I would say based on your facts that is incorrect. The settlement agreement would have been incorporated into the settlement order where there was a express ruling by the Judge that the probate Court retains jurisdiction over the matter. I would say that it is mandatory that it be heard in probate. While you could move to have it transferred and consolidated, a process which involves filing a petition with the chief Judge, I believe you have a simpler remedy. I would have your Attorney file a motion to dismiss the chancery action and for attorney's fees and costs since the matter is not a separate action but is in fact a post-judgment enforcement of an order in an existing action. Since the Court Order from Probate clearly states that it retains jurisdiction, the Plaintiff's failure to file in in Probate should allow you to obtain Attorneys fees and costs for bringing it in the wrong venue. Good luck.See question
I found out that my sister is paying all of my dad’s legal fees, for an attorney to prepare documents for her to buy property from him at a very discounted amount, and also created an assignment of claims for her to sue another family member on my...
This is a very complex issue that is not uncommon for Attorneys practicing in the area of Elder Law. Frequently a large portion of the interaction about an elderly Clients matters are handled by a designated child or third party. This is just the reality of dealing with someone who has failed to plan properly and no longer has the energy or physical ability to actively participate in every step of the process. The payment of legal fees for someone else is also not uncommon. Children frequently pay for the planning and documents for their elderly parents because they are the ones who will be left to deal with the problems.
The question implies possible lack of capacity because he is 77 and showing signs of dementia. First capacity is generally a legal determination not a medical one, whether legal capacity exists depends also upon what they are doing as there are many forms of capacity. Age or a diagnosis of an illness do NOT establish lack of capacity. Each type of legal capacity has set elements which must be met to determine capacity.
The disparity in treatment in types and amounts of bequests is also very common especially with the elderly. Unlike a younger couple who make equal distributions, the elderly frequently change that division. Whether it is because one child has spoken to them in 10 years, one child has been using them as the bank forever, one child loves them but sees them infrequently because they live far away, or one child has lives nearby and does their shopping, takes them to all their doctor visits, helps them deal with matters they no longer wish to do, there are many reasons for an unbalanced division.
In my office, in most types of cases we make it clear from day 1 that we represent the senior not the children. As a matter of course, my office takes precautions to prevent actual or the appearance of undue influence or lack of capacity. So if the senior proposes a radical shift from prior plans, has received a diagnosis of dementia or other illness or shows signs of loss of cognitive ability, or if the family relation is volatile, then we provide letters for the seniors physician to complete where the physician is required to give an opinion on the senior in regard to each of the required elements of capacity. At the time of the first meeting we always will spend a good portion of the meeting with just the senior, the attorney and a third member of the firm’s staff to take down notes and observations. At that point we asks questions designed to find factors suggesting potential undue influence, lack of capacity or a variance or uncertainty in regard to the senior’s distributive plan
If we are comfortable that the senior has capacity and the plan presented is what the senior desires, then we will go forward with the plan but will also include specific separate written acknowledgements of any actual or appearance of conflict of interest, undue influence or lack of capacity which must be signed by the senior, other relevant family members, and usually of member of my firm.
So while on the face of it your facts appear to suggest some undue influence by your sister I would talk to her if you get along or to your father and discuss your concerns. Perhaps the Attorney is skilled in the area and has taken proper safeguards to make sure the plan is what your father wants and is not being controlled by your sister. If you cannot resolve it directly, then you should immediately retain an experienced Elder Law Attorney to assist you in determining and implementing the appropriate action whether it is an out of Court resolution or to bring an emergency guardianship proceeding to prevent your sister from continuing any undue influence and to have the Court determine any document prepared to be of no effect. If there is evidence indicating that the prior Attorney knowingly assisted your sister in any improper conduct, then file the appropriate complaint before your State Attorney ethics Board. Good Luck.
I am suing a business for breach of contract and the owner just died. I need to properly serve his estate. No one from the opposing side will tell me if there is a representative for his estate, and they said it was insufficient to serve the dece...
If you are trying to sue a business for breach of contract, generally the business is the proper defendant if the business is a corporation or a limited liability company. In that situation the owner would only have legal liability if the owner personally guaranteed the contract or you can pierce the corporate veil. On the other hand, if the business was a sole proprietorship or if you believe that you can establish personal liability against the owner, then you can bring an action against the Decedent’s Estate. Almost all claims against a Decedent must be determined as part of a Probate action. You can determine whether an Estate has been opened or if the decedent’s will was filed but no probate estate opened yet, by contacting the Clerk of the Circuit Court for the County in which the Decedent resided at the time of death. Since the Decedent just died, it is possible that someone will open a Probate Estate for the Decedent but simply has not done it yet. If an Estate was opened and the Decedent was personally liable, your current lawsuit would probably no longer be appropriate, but you would file a Claim against the Estate and prove your case as part of the Probate Case.
On the other hand, if no Estate is going to be opened, you can consider opening a Creditor’s Estate. Again your pending action would no longer be appropriate as the matter would be handled through the Probate Court as part of the probate process. Please be aware that you might go through a lot of time and money only to find that your Judgment is uncollectable. Claims in Probate can only be paid by assets inside probate or which can be brought into Probate. Even then, a claim is only paid to the extent there are sufficient funds to pay it after paying all claims or creditors of higher classifications. The Probate Act in Illinois classifies creditor claims into categories, and all creditors in a higher category must be paid in full prior to any creditor in a lower category receiving anything. It would appear based upon your description that you would probably have a claim in the lowest category and therefore would only get paid after every other creditor got paid.
It is also important to remember that just because the decedent had assets prior to death that does not mean those assets can be used to pay your claim. Assets held in joint tenancy with another automatically become the property of the other at the moment of death, and unless you have some basis for a claim against the other person individually then the asset is not available to pay your claim. There are other possibilities as well, such as the Decedent having had a Trust which generally would be reflected in the decedent’s Last Will, and it may be possible to collect from the Trust.
In all of these situations there numerous possible variations which must be investigated to determine how you should proceed. The biggest obstacle in these types of matters is determining whether to proceed. It will be very difficult for you to determine whether or not there are any assets available to satisfy your claim, and to make that determination you might need to spend a lot of time and money just to find out there is nothing to get. I recommend that you contact an experienced Probate Attorney to make a determination whether you are willing to spend the time and money necessary just to find out if any judgment you might obtain would even be collectible. Good Luck.
My mother is 83 with dementia. Its to the point that she needs nursing home care. I have been her caretaker for the last 4 years. The home we live in is in both of our names. We want to transfer into my name only. She will have to go on medic...
You need to meet with an elder Law Attorney in your area immediately. While you are correct in your general statement of the law in regard to the home, as with most situations the devil is in the details so to speak. First it is necessary to address the issue of authority to transfer the home. The first issue which was raised in one of the other answers is whether your mother has legal capacity to sign any documents. The other Attorney made a common assumption that since your mother has dementia and is in need of nursing home care that therefore she lacks capacity. That is an incorrect assumption to make. First, it is important to understand that capacity is a legal issue, not a medical one. Further, there are multiple forms of capacity, most commonly testamentary capacity and contractual capacity. A medical diagnosis is not determinative of capacity. There are set rules for determining capacity. However it is important to understand that capacity can fluctuate from day to day or based upon the hour of the day. Individuals with dementia can suffer from something called sundowners, whereby they may have capacity early in the morning, but lack it by the end of the day. So, the first thing you need to do is work with an Elder Law Attorney to determine if your mother currently has legal capacity. If your mother currently has capacity, she can sign the deed without the need for a power of attorney, though you certainly want Durable Powers of Attorney for Health and Durable Powers of Attorney for Property to be able to assist her.
Assuming that she lacks capacity, but has Powers of Attorney in place, the next question is whether the Durable Power of Attorney grants the agent authority to gift or transfer property and if you are the named agent whether it also allows for self-dealing in certain circumstances. Most people do not understand that all Durable Powers of Attorney are not the same. While most States have a statutory form, which is what many people use without modification, the Durable Power of Attorney statutes are designed to allow significant modifications to the extent and nature of the powers granted. Many people and Attorneys believe that a standard form covers everything, frequently relying on the apparent broad authority granted on the face of the document. Unfortunately that is not true. As an Elder Law Attorney the Durable Powers of Attorney I prepare for my Clients contain substantial modifications which allow the agent to take specific actions, including steps to transfer property to a child caregiver under Medicaid.
It is also essential to understand that Medicaid, unlike Medicare, is not a matter of right. You must understand that the burden of proof is on you to establish that you meet all the criteria to qualify. Unfortunately while the laws are published, the State agencies in charge of Medicaid frequently do not publish or advise you what exactly is required to establish your rights. In most States there has been active efforts to reduce the number of people on Medicaid and whether it has been done by changing the statutes or by modifying the procedural requirements, both written and unwritten, large numbers of qualified individuals that have had their applications denied because of a naïve belief that since they meet the general legal standards that the State will automatically approve them. Jointly owning the property with your Mother does not mean that you can keep the house and protect your mother. While you might rely upon your joint ownership, the State agency in charge of Medicaid might simply you’re your Mother’s application since she failed to force a sale of the residence and use her half to pay for her care. All of these issues are extremely complex, and it is imperative that you retain an experienced Elder Law Attorney immediately if you seek to protect your claim to the home while still getting your mother qualified for Medicaid payment for her care. Good Luck.
I would like to know the provisions of a whole life ins policy that I have paid more than twice the face value that is only $4,000, and I am the beneficiary. The policy belongs to a family member who I am the legal guardian of. (the person not the...
The answer to your question may not be as easy as it may first appear. You indicate that you are the guardian of the person only. Has there been a guardian of the Estate appointed? If the policy is owned by the disabled insured, and it is a whole life policy, meaning that the policy has cash value, which is implied from the comment from the insurance company that the policy will be paid up with one more payment, then you do not have authority in regard to that policy. The cash value of that policy is in fact an asset of the ward’s estate and therefor comes under the jurisdiction of the guardian of the estate. In addition, there might be issues in regard to the policy if the ward receives SSI from Social Security or is on Medicaid. You probably should not have been paying the premiums on this policy because though you are the beneficiary, the ward is the owner of the policy. You should immediately contact the Attorney who worked with you to obtain guardianship of the ward’s person. I would not pay anything more until this issue is clarified, as it is possible that the guardian of the estate may be required to cash in the policy to avoid loss of benefits to the ward. Good luck,See question
I am POA for my 90 yr old mother who is in a nursing home. She knew at the time that her house was to be sold when she entered it but thought it had to be sold upon her passing.. She has been in the nursing home for 1 1/2 yrs and now They want the...
Your question cannot be answered based upon the limited information provided. I am an Elder Law Attorney and there are several possible answers to your question including situations where the house might be able to be transferred to your brother and your Mother qualified to have Medicaid pay for her nursing home expense. Why did your brother never leave home, Is your brother disabled? While your mother is now in a nursing home, did your brother provide care to her for a period of at least 2 years prior to her going into the nursing home where without the care she would have had to go into the nursing home? Depending upon the answer to these questions, you might have a possibility of saving the house. However, the process is extremely complex and expensive. I am not sure what advise you received from the lawyers to whom you paid all the money, however I would guess that none of them were Elder Law Attorneys. I would recommend that you do not resign as agent under your Mother's power of Attorney until you have talked to an experienced elder law attorney. You may need the POA in order to protect your mother, your brother and yourself. You must understand that it is not the State that will sue for non-payment but the nursing home. If you signed the nursing home contract on behalf of your mother or as the "Responsible Party" you might have exposed yourself to personal liability. Many nursing home contracts have clauses which makes the responsible party, which is generally the agent under a POA, personally responsible generally without you even knowing it. Resigning as agent under the POA now will not necessarily relieve you of liability under the nursing home's contract but may make it difficult to protect your mother, your brother and yourself if you do resign, It is extremely important that you retain an Elder Law Attorney immediately to have him or her review what has occurred and what options you have at this point. While you may have to expend money to pay the Attorney, the amount you pay the Attorney will probably be a fraction of the potential financial loses suffered by your mother and yourself, not to mention how you would plan on paying for or providing care for your mother if she is involuntarily discharged from the facility for non-payment. Good Luck.See question
Dad's property taxes are high and he needs to go into a assisted living situation. Can we sell his home and use the proceeds for his care at new home without penalty from Medicaid (which will be needed later on). If we don't sell, we can't pay p...
I believe that it is essential that anyone who finds themselves in a situation such as this, or has legitimate concerns about paying for long term care for a member of their family or other loved one, consult with an experienced Elder Law Attorney as the very first step in dealing with the situation. The laws concerning Medicaid coverage of long term care expenses are extremely complicated, and unfortunately many individuals are penalized or denied benefits as a result of innocent actions done in a good faith belief that they are allowable. Frequently families take actions based solely upon what their friends tell them they did successfully, without taking into consideration that the laws concerning Medicaid eligibility have changed dramatically in the last few years alone and actions which once were allowable are not any longer. In addition, individuals and families are unaware that Medicaid coverage is not a right and that the burden of proving that the qualifications have been met rests solely with the applicant. This can create a great deal of difficulty for a Medicaid applicant and his or her family, since they believe they have met the qualifications as set forth in the law without being aware that frequently the State has specific criteria or evidentiary requirements, as well as strict procedural requirements, many of which are unpublished, which you must be meet to satisfy the State that you have met your burden of proof. What that means is the State will frequently penalize or deny the benefits for an applicant even though the State knows that an applicant is qualified and should not be denied or penalized, because the applicant failed to follow a set of rules and procedures that they don’t even know exist.
Your question contains many common misconceptions regarding Medicaid. The concept of spend down is not necessarily a simply one, though many will try to convince you that it is as long as you spend the money on them. The first thing you want to address is whether you have legal authority to assist your father if he no longer is capable of handling his own medical and financial affairs, including applying for Medicaid benefits. Even this matter is not simple when considering Medicaid eligibility, because many of the actions which may be necessary to assist your father will not be authorized by standard form Durable Powers of Attorney. When there is a possibility, even a remote one, that someone could need Medicaid to pay for long term care, then they need to have an experienced Elder Law Attorney review and or prepare their Estate planning documents.
The good news in regard to your father’s situation, it would appear from the facts presented in your question, that with the assistance of an experienced Elder Law Attorney, your father should be able to use his assets for his benefit now without jeopardizing his qualification for Medicaid benefits when he needs them. Obviously, an actual determination of what needs to be done can only be made after a careful examination of all of the many facts relevant to your father’s circumstances. Please feel free to contact my office if you would like an appointment to bring your father in to discuss his estate and elder planning needs. Good luck.
My dad passed away about a month ago leaving my son and I a good some of money and real estate . Can Medicaid come after me for the money they paid to the nursing home?
The State of Illinois has the legal right to recover money expended on your behalf. You have an obligation under Illinois law to inform the State of your receipt of any asset or amount of money above the exempt limit within 10 days of receipt of the asset. The other Attorneys are correct in the information they provided. In Illinois a disclaimer of a right to receive an inheritance is an improper transfer which would subject you to a period of ineligibility. There are potential things that you might be able to do to preserve some of this money for your future use or that of your family, but you must seek out and retain an experienced Elder Law Attorney immediately. You must understand that timing is essential in most any plan to preserve as much of the inheritance as possible. Money received while you are Medicaid is treated as income in the month it is received, subject to Medicaid income limitations; however it is not an asset for Medicaid spend down purposes until the first day of the month following your receipt of the money. This means an experienced Elder Law Attorney might be able to take advantage of this short window between receipt of the asset and the first of the following month to implement a plan on your behalf. However any such plan takes a lot of work and planning and so it is essential that you retain the Elder Law Attorney sufficiently in advance of the anticipated distribution date from your father’s Estate. This is an extremely complex area of the law and successful actions to preserve assets post-Medicaid approval are much more difficult than plans taken prior to approval. The rules regarding allowable spend down are different post-Medicaid approval. The information you provide is inadequate to provide any actual suggestions as to a course of action, other than the most important one which is hiring an experienced Elder Law Attorney immediately. In addition to the suggestions the other Attorneys made for finding an Elder Law Attorney, you can contact the Illinois chapter of the NAELA for a directory of qualified Attorneys near you in Illinois. Good luck.See question
I am trustee of trust (both) and beneficiary.
The terms of your parent's Trust control the handling of all Trust assets. You indicate that you are the beneficiary of the Trust; however they may be other issues to consider prior to any distribution. Obviously, you must confirm what assets are in the Trust, including whether this real property is an asset of the Trust. Unfortunately, it is not uncommon for people to create a Trust but fail to properly fund the Trust. While your parent’s revocable trust may avoid the need to probate their estate it does not avoid the responsibility for paying their debts. As the successor Trustee, you are a fiduciary and owe a duty to comply with the terms of the Trust. This is very important as your potential personal liability can be quite high for errors made while acting in any fiduciary capacity, if you are uncertain how to handle the Trust administration I strongly recommend that you consult with and possible hire an experienced Probate or Trust Attorney. That Attorney can review your parents Trust, advise you of your obligations under the terms of the Trust and assist you with the procedures for finalizing the Trust administration as well as the transfer of the real property. In Illinois there will be no transfer tax for real estate being transferred out of probate or a trust upon an individual's death, as transfers de minimis value, usually less than $500.00, are exempt from purchasing transfer stamps. Since this transfer is for no value, there will be no transfer stamp based upon value, however in Illinois many local municipalities will require you to obtain an "Exempt Stamp" which of course you will have to pay them to get. In addition many municipalities have other requirements to issue transfer stamps or exempt for the transfer real property in Illinois, such as inspections, requiring certain repairs after the inspections, paying water bills or other outstanding monies owed to the municipality. Good luck.See question
Mom getting out of hospital and going into respite care. She has dementia and we would like for her to stay at nursing home after respite for long term skilled care. She has some cash to pay for about 4 months of skilled care and then would need...
As an Elder Law Attorney I cannot emphasize enough the importance of you hiring an Elder Law Attorney immediately to assist your family. Your question reveals that you an incorrect understanding of the rules for qualifying for Medicaid assistance in Illinois. In addition what you mean by your mother's two weeks of respite care, the implication that she is not paying for this care. Who told you she was entitled to 2 weeks of respite care? Medicare pays for 2 weeks of respite care but only to those individuals who are terminal and in hospice. On the other hand, Medicare will pay for up to 100 days of rehabilitative care after an individual has been an admitted patient at a hospital for at least 3 full days. If that is the case you may be entitled to more time than you think depending upon your mother's conditions other than the dementia.
In regard to your mother's home you are also misinformed. Once your mother moves into long term care without the intention of returning home, then her home is no longer an exempt asset. There are certain exceptions to this rule if your family meets the qualifications. However, there are specific steps which need to be taken to either preserve this asset if the qualifications exist, or to allow your mother to qualify for Medicaid payments until the home is sold. These rules are complex and you really need to consult with an experienced Elder Law Attorney immediately. Given your mother’s circumstances and limited liquid funds any delays in seeking proper legal advice could be detrimental. Good Luck.