Naperville Estate Planning Attorney Discusses Leaving Assets to Caregivers

caregiver, Naperville estate planning attorneyAs you get older, you may require increased levels of medical and personal care. In some cases, your children, grandchildren, or other family members may be able to provide the assistance you need, but in other instances, you may be forced to rely on the services of a caregiver to whom you are not related.

Throughout my career as an estate planning attorney, I have met with many clients who, over time, have developed very close personal relationships with their caregivers. Some caregivers may even become like part of the family. If you have become close with your caregiver, you may be considering adding him or her as a beneficiary in your will, trust, or other estate planning documents. It is important, however, for you to be aware of an Illinois law designed to protect you from potential fraud by unscrupulous caregivers.

Dangers of Unrestricted Access

The vast majority of caregivers are good people with good intentions. A small percentage, however, may become opportunistic when given direct access to the person under their care. It can be relatively easy for a caregiver—not including those related to the person in need of care—to gain the trust of the person under his or her care and to eventually convince the person to include the caregiver in the person’s estate plan. This is especially dangerous if the person in need of care does not have other family nearby or whose health and mental capacity may be diminished.

Presumption of Fraud

In 2015, the Illinois Probate Act was amended to include a provision that makes it easier for family members of a decedent to challenge asset transfers to the decedent’s caregiver or any member of the caregiver’s family. Specifically, the law says that if any instrument of transfer—such as a will or trust—gives a caregiver property that exceeds $20,000 in value, the transfer instrument is presumed to be void upon being challenged.

The presumption, however, is rebuttable which means that in the event of a challenge, the caregiver would have the opportunity to make his or her case. (If the instrument is not challenged within two years, the transfer will stand.) To overcome the presumption, the caregiver must show that:

  • He or she stood to receive at least the same amount of property before being named as caregiver. For example, if a family friend who was already a beneficiary in an existing will became the caregiver, this could override the presumption of fraud; or
  • The transfer of property was not result of “fraud, duress, or undue influence.”

The burden of proof is relatively high. The law requires the first point to be proven “by a preponderance of the evidence” and the second point to be proven “by clear and convincing evidence.” A preponderance of the evidence means that the caregiver’s account is more likely than not to be true, while clear and convincing evidence means that caregiver’s story is significantly more likely than not to be true.

Work With an Estate Planning Professional

If you or a loved one requires the services of a caregiver and you wish to include him or her in your will, an experienced Naperville estate planning lawyer can help ensure your wishes are carried out appropriately. To learn more, contact The Gierach Law Firm today and confidential consultation with a knowledgeable member of our team.

 

Sources:

Illinois Probate Act of 1975

Illinois Bar Journal