PROTECTING VULNERABLE PEOPLE FROM FINANCIAL EXPLOITATION

The Illinois statute entitled “Presumptively Void Transfers” protects all individuals from coercion by their caregivers. Under the statute, certain transfers to caregivers are deemed void unless the caregiver can prove by clear and convincing evidence that the transfer was not the product of coercion and undue influence by the caregiver. This is a very high burden of proof which makes it very difficult for caregivers to pray on the sick and elderly.

Presumption that a transfer is void

Under the statue, any transfer of property valued at over $20,000 to a “caregiver” (including under a will, trust, transfer on death account, etc.) is presumed to be void. Once this presumption attaches to a transfer, the caregiver must prove by clear and convincing evidence that (1) the transfer was not the product of fraud, duress or undue influence or (2) the amount of the transfer is not greater than what the caregiver was going to receive under the documentation in effect prior to time that the caregiver began providing services to the transferor.

Important points about the statute

• The statute applies to transfer instruments, such as a will, deed or trust, which were executed after January 1, 2015.
• Any challenge to a transfer must be brought within two years of the date of the transferor’s death.
• A caregiver is defined as someone who provides caregiving services either for pay or voluntarily.
• The statute does not apply to family members. Therefore, a transfer to a family member/caregiver is not affected by the presumption referenced in the statute. However, unmarried partners are not considered family members under the statute.
• The statute applies to all transfers to caregivers, not only those where the transferor is elderly or disabled.
• If a caregiver fails to overcome the presumption, they will be liable individually for the attorney’s fees incurred by the party challenging the transfer.

What to watch for

Any proposed transfers to non-family members should be scrutinized by the professionals providing advice to the transferor and the family members of the transferor. This is especially true when the transferee provides some type of caretaker services to the transferor. These could even include assisting with the task of daily living. There need not be a formal arrangement or agreement for payment for the services. A transfer to a caregiver could result in protracted litigation and expense to all parties involved. If the transfer is legitimate, it should be scrutinized by independent outside counsel and well documented so that the transferee could overcome the presumption that the transfer is void, if necessary.

If those steps are not taken, the transfer is highly susceptible to challenge by the transferor’s family members or other beneficiaries.

Conclusion

The experienced Chicago estate planning attorneys at Hays Firm, LLC have represented clients challenging presumptively void transfers and defending against such claims. If you are in a situation where there is a dispute regarding a transfer to one of your loved one’s caregivers, please do not hesitate to contact us to discuss how we can help.