New Illinois Probate Law Signed to Protect against Caregiver Abuse

convincing evidence, Naperville estate planning attorney, new Illinois probate law, presumption of fraud, elderly caregiver, probate, DuPage estate planning attorneyA new Illinois probate law will prevent non-family caregivers from financially abusing their elderly patients. Beginning on January 1, 2015, the statute will create a presumption of fraud regarding property transferred to a non-family caregiver through a will or other instrument, if the transfer exceeds $20,000. This presumption applies only to “caregivers” and excludes the patient’s family members. Furthermore, while the law clearly protects the elderly, it also protects any person who requires a caregiver and who might be unduly influenced to make a property bequest.

Who Qualifies as a “Caregiver”?

The law defines a caregiver as “a person who voluntarily, or in exchange for compensation, has assumed responsibility for all or a portion of the care of another person who needs assistance with activities of daily living.” The definition of “caregiver” encompasses the spouse, cohabitant, child, or employee of the person providing assistance. The reasoning behind this is simple: If a caregiver wants to defraud a patient, he might do so by inducing a property transfer to his spouse or child instead of naming himself as the direct beneficiary.

If the transferee is a caregiver, and the fair market value of the transferred property exceeds $20,000, there is a rebuttable presumption that the transfer instrument is void. Note that the presumption only arises in a civil action challenging the transfer instrument. The law does not impose an independent duty on any financial institutions or other entities related to the transfer instrument. In other words, without a legal challenge, no one has a duty to prevent the transferor from bequeathing property to the caregiver. There is a two-year statute of limitations, which means that any person who wants to challenge a property transfer under this statute must do so within two years of the transferor’s death.

Overcoming the Rebuttable Presumption of Fraud

The presumption can only be overcome if the caregiver proves:

  1. By a preponderance of evidence that his share under the transfer instrument is less than the share he was entitled to under a transfer instrument in effect before becoming a caregiver; or

  2. By clear and convincing evidence that the transfer did not result from fraud, duress or undue influence.

“By a preponderance of evidence” and “by clear and convincing evidence” are legal standards of proof and are somewhat subjective. If you have to prove your case by a preponderance of evidence, then your evidence must be convincing. Remember that the court values quality of evidence over quantity. The clear and convincing standard is more exacting. Under this standard, a party must prove that his story is substantially more likely to be true than false.

This new probate law is currently untested; however, the protections are something to keep in mind if you or a family member has a caregiver. Remember that the rebuttable presumption only applies to transfer instruments executed on or after January 1, 2015, and only if you challenge that instrument in a civil action. For questions regarding this new law, contact one of our experienced Naperville estate planning attorneys. We can explain how the law will affect you and your family.