The Age Wave: How the Boomers are (again) changing everything

America is in the middle of a historic demographic shift — one that will touch nearly every family, workplace, and community. This transformation is called the Age Wave, a term used by gerontologist Ken Dychtwald to describe the unprecedented growth in our older population.

What Is the Age Wave?

The Age Wave began when the first Baby Boomers turned 65 in 2011, and it will crest through the 2030s. By 2030, all Baby Boomers will be age 65 or older, and by 2034, for the first time in U.S. history, there will be more people over 65 than under 18.

• In 2022, there were about 58 million Americans over age 65.

• By 2040, that number will climb to more than 80 million.

This shift is being driven by longer life expectancies, lower birth rates, and a large wave of Baby Boomers remaining active well past traditional retirement age.

How the Age Wave Is Reshaping the Workforce

Many Americans are working longer — sometimes by choice, often by necessity. Older employees bring decades of experience and mentorship value, but they may also face challenges such as:

• Age discrimination in hiring or promotion.

• The need to reskill to keep pace with technological change.

• Health issues or caregiving duties that make traditional work schedules difficult.

Employers who adapt with flexible schedules, training programs, and inclusive policies can harness the strengths of an age-diverse workforce. Those who don’t risk losing a wealth of talent.

Why This Matters for Seniors and their Families

As more people work longer and live longer, the legal and financial planning needs of families are shifting. The Age Wave intersects with elder law in critical ways:

• Guardianship & decision-making: Longer lifespans mean more years where legal decision-making authority may need to be transferred to a trusted person.

• Medicaid & long-term care planning: With rising healthcare costs, advance planning is essential to protect assets while ensuring quality care.

• Special needs & supplemental trusts: More families will need tailored estate planning for loved ones with disabilities or chronic conditions.

• Senior housing & nursing home contracts: The demand for housing that balances independence with care will soar, making contract review and negotiation vital.

How My Law Firm Can Help

The Age Wave is not just a statistic — it’s a lived reality for millions of families. In my practice, I see how proactive legal planning can make the difference between crisis-driven decisions and a smooth, dignified transition.

Whether you are an employer navigating an older workforce, an adult child caring for aging parents, or a senior planning your next chapter, the time to prepare is now. By addressing legal, financial, and healthcare needs early, you can face the Age Wave with confidence and peace of mind.

The contents of this blog post are intended to convey general information only and not to provide legal advice or opinions.

Understanding Nursing Home Resident's Rights: Protecting Dignity and Care

Choosing a nursing home for a loved one is one of the most important decisions you’ll make. Whether due to illness, injury, or age-related issues, placing someone in long-term care is a major step. But it's crucial to understand that nursing home residents are entitled to a range of legal rights that ensure they receive appropriate care, dignity, and respect. These rights are designed to protect seniors and ensure that they live in a safe and supportive environment, with the freedom to make choices about their lives and care.

In this blog, we’ll explore the rights of nursing home residents, the importance of these rights, and what families can do to advocate for their loved ones if those rights are violated.

What Are Nursing Home Resident's Rights?

The Nursing Home Reform Act of 1987, part of the Omnibus Budget Reconciliation Act (OBRA), established a set of fundamental rights for nursing home residents in the United States. These rights are designed to ensure that individuals in nursing homes are treated with respect, have a voice in their care, and are free from abuse and neglect. While these rights vary slightly by state, the following are some of the core rights guaranteed by federal law:

1. The Right to Dignity and Respect

Nursing home residents have the right to be treated with respect and dignity at all times. This includes:

• Being addressed by their preferred name

• Receiving care that is respectful of their privacy

• Having their personal possessions treated with care and respect

• Having a say in decisions about their care and treatment

A nursing home should foster an environment where residents are valued as individuals, not just patients.

2. The Right to Personal Privacy

Residents are entitled to privacy in all aspects of their lives. This includes:

• The ability to close doors and draw curtains for privacy when in their rooms.

• Receiving visitors at reasonable hours and in private.

• Control over their personal communications, such as phone calls and mail.

Nursing home residents also have the right to confidentiality about their medical records and personal information. These records can only be shared with others with the resident’s consent or in situations where it's required by law.

3. The Right to Make Decisions About Their Care

Residents have the right to make decisions regarding their care and treatment, which includes:

• The right to refuse any medical treatment or care.

• The right to be fully informed about their medical condition and care options.

• The right to be informed about the risks and benefits of treatments, medications, and procedures.

• The right to choose their healthcare providers, including specialists and doctors.

Nursing homes are required to obtain informed consent before administering any care, and residents should never feel pressured into making decisions that they are uncomfortable with.

4. The Right to Be Free from Abuse, Neglect, and Mistreatment

Nursing home residents are entitled to live in an environment free from abuse, neglect, and exploitation. Abuse can take many forms, including physical, emotional, sexual, and financial abuse. Neglect occurs when a resident’s basic needs—such as food, water, hygiene, or medical care—are not being met.

Signs of abuse or neglect may include:

• Unexplained bruises, cuts, or injuries

• Sudden changes in behavior or withdrawal

• Lack of personal hygiene or unkempt appearance

• Unusual financial transactions or missing personal items

If you suspect abuse or neglect, it’s important to take action immediately by reporting it to the nursing home administration, state regulatory authorities, or law enforcement.

5. The Right to Access and Participate in Social, Religious, and Recreational Activities

Nursing homes are required to provide residents with opportunities for socialization, recreation, and community participation. This includes:

• Access to group and individual activities that promote physical, emotional, and social well-being.

• Opportunities to participate in religious services or spiritual activities, as desired.

• Access to community resources such as transportation and volunteer services.

Activities should be tailored to the resident’s interests and abilities, fostering a sense of connection and engagement.

6. The Right to Privacy in Financial Matters

Residents have the right to manage their own finances or designate someone to handle their finances, such as a Power of Attorney (POA). Nursing homes must also be transparent about any fees and charges, and they cannot pressure residents to sign over their assets.

Additionally, residents must have access to a clear statement of their financial rights, including their right to keep money and possessions. Facilities must also protect residents' financial assets from fraud or exploitation.

7. The Right to Participate in Family and Legal Affairs

Nursing home residents are entitled to:

• Be involved in family and legal matters, including communication with family members, attorneys, or other representatives.

• Be informed of their rights and how to file grievances or complaints regarding their care.

• Designate a person to represent them in legal and care-related decisions.

Family members and legal representatives should feel empowered to advocate for their loved one’s well-being and care, both legally and practically.

8. The Right to Be Notified of Changes in Care or Status

If a nursing home wishes to make any significant changes to a resident’s care plan, including transfers to another facility or changes to the resident’s medical treatment, they must:

• Notify the resident and their family or legal representative in advance.

• Provide reasons for the change and allow time for feedback and discussion.

9. The Right to Discharge and Transfer

Residents have the right to be discharged or transferred from the nursing home if they so choose, but there are some restrictions. For instance, the nursing home must provide a valid reason for the discharge or transfer, such as the resident no longer needing skilled care or being unsafe to remain in the facility.

In some cases, if a family member wishes to transfer a resident to another facility, the nursing home must assist with the process and ensure that the resident’s rights are protected during the transfer.

How Can Families Advocate for Nursing Home Residents?

Understanding these rights is vital for families and caregivers. While most nursing homes aim to provide high-quality care, problems can arise. To advocate effectively:

• Stay Involved: Visit your loved one regularly, and get to know the staff. This helps you notice any changes in care or behavior that may be cause for concern.

• Be Proactive: If you see signs of abuse, neglect, or violation of rights, speak up. Discuss concerns with nursing home staff and administrators immediately.

• File Complaints: If issues are not resolved, you can file complaints with the state long-term care ombudsman or the U.S. Department of Health and Human Services.

• Consult an Attorney: If you suspect legal violations or need help navigating a dispute with the nursing home, consult an experienced attorney in elder law.

Conclusion

The rights of nursing home residents are essential to their dignity, well-being, and care. Whether you are a resident or a concerned family member, knowing these rights is the first step in ensuring that seniors receive the care and respect they deserve.

At the Law Office of Kate Curler, we are committed to advocating for seniors and protecting their rights. If you have concerns about a loved one’s care in a nursing home, contact us for a consultation. We can help guide you through the process of advocating for the best care and support, ensuring that your loved one’s rights are protected every step of the way.

The contents of this blog post are intended to convey general information only and not to provide legal advice or opinions.

Understanding the adult guardianship process

Understanding Adult Guardianship: A Guide for Families and Caregivers

As our loved ones age or face debilitating illnesses, the need to make decisions on their behalf can sometimes become overwhelming. In these situations, adult guardianship may be the right path to ensure their well-being and protect their rights. However, the process of seeking guardianship can be emotional and complex, which is why it’s essential to understand what guardianship entails, when it might be necessary, and how to navigate it effectively.

What Is Adult Guardianship?

Adult guardianship is a legal process in which a court appoints an individual (often a family member) to make decisions on behalf of an adult who is deemed incapable of managing their personal or financial affairs. There are two primary types of guardianship:

1. Guardianship of the Person: This type of guardianship grants the guardian authority to make medical, housing, and other personal care decisions for the incapacitated person.

2. Guardianship of the Estate: This gives the guardian control over the financial and property-related decisions of the individual who can no longer manage their finances due to mental or physical limitations.

In some cases, a person may need both types of guardianship. A family member or trusted individual will be appointed to manage both personal care and finances, ensuring that their loved one's needs are met comprehensively. In some cases, an agency or professional guardian is appointed.

When Is Guardianship Necessary?

Guardianship is typically considered when an adult can no longer make decisions for themselves due to a condition such as:

• Dementia or Alzheimer’s Disease: These conditions impair a person’s ability to understand or make decisions about their health care, finances, and personal well-being.

• Severe Mental Illness: Mental health conditions can render an individual incapable of managing their affairs or understanding the consequences of their actions.

• Physical Disability: A debilitating injury or illness may leave an individual unable to communicate or manage their personal affairs.

• Cognitive Impairments: Conditions such as brain injury or intellectual disabilities can affect a person’s ability to function independently.

In cases like these, family members or friends may need to step in and take over the decision-making process to ensure their loved ones receive proper care and protection.

The Legal Process of Adult Guardianship

Seeking guardianship typically involves filing a petition with the court, demonstrating that the person in question is incapable of making decisions and that guardianship is in their best interest. The court will evaluate the evidence presented and may appoint a medical professional to assess the individual’s condition.

Here are some essential steps involved in the guardianship process:

1. Petitioning the Court: The potential guardian must submit a petition to the court outlining why guardianship is necessary and medical evidence of the person’s incapacity.

2. Court Hearing: The court will schedule a hearing where both the petitioner and other interested parties (such as family members) can present their case. The individual in question may also have a legal representative at this stage.

3. Appointment of a Guardian: If the court finds that guardianship is warranted, it will appoint a guardian to handle the individual’s affairs. This decision is typically based on the best interest of the incapacitated person.

4. Ongoing Monitoring: Once appointed, the guardian must regularly report to the court on the individual’s condition and the management of their affairs to ensure that the guardianship is being exercised appropriately.

Alternatives to Guardianship

While guardianship is an option, it’s not always the first or best choice for every situation. There are alternative measures that may provide the necessary protection without requiring full guardianship, such as:

• Power of Attorney: A Durable Power of Attorney (POA) allows an individual to appoint someone to make decisions on their behalf for healthcare or financial matters. This is often a simpler and less intrusive alternative to guardianship. It is best to have a doctor’s opinion and hire an attorney before a loved one signs these documents, to avoid allegations they are invalid.

• Living Wills or Healthcare Directives: These legal documents specify a person’s preferences for medical treatment if they become unable to communicate or make decisions for themselves.

• Trusts: A trust can be set up to manage assets without the need for court-appointed guardianship.

While these alternatives can be effective, they only work if the individual is still able to make decisions and understand the implications of their actions at the time of signing. Once an individual’s capacity is in question, guardianship may be the only solution.

The Role of the Guardian

Once guardianship is granted, the appointed guardian has a significant responsibility. The role includes:

• Making Healthcare Decisions: Ensuring the person’s medical care aligns with their needs and wishes.

• Managing Finances: Overseeing the individual’s financial matters, including paying bills, managing assets, maintaining real estate and making long-term financial plans.

• Personal Care: Ensuring the individual is receiving proper personal care, housing, and day-to-day support.

Guardians must act in the best interest of the person they are caring for, avoiding conflicts of interest and ensuring the individual’s dignity and rights are respected.

What Are the Risks and Challenges?

While guardianship can offer essential protection, there are often challenges. The process can be time-consuming, emotionally taxing, and expensive. Moreover, family conflicts may arise, particularly if there are disagreements about the need for guardianship or who should be appointed as the guardian.

One of the risks of guardianship is that it can potentially strip the individual of their independence and rights to make decisions about their own lives. Guardianship should be considered only when absolutely necessary, and efforts should be made to preserve autonomy wherever possible. A competent Guardianship attorney will make sure they have the necessary evidence needed for a guardian to be appointed and to try to be as respectful as possible of the impact the guardianship will have on the senior, their family and their friends.

Why Seek Legal Advice?

The guardianship process can be complicated, and mistakes can lead to long-lasting consequences. For those considering guardianship for a loved one, it’s essential to consult with an experienced attorney who can guide you through the process, protect the rights of the incapacitated person, and ensure that all legal requirements are met.

At the Law Office of Kate Curler LLC, we offer over 15 years of experience in Guardianship cases in Illinois. We provide compassionate and expert legal guidance through every step of the guardianship process. Whether you’re a family member facing the tough decision of seeking guardianship, or an individual concerned about your future well-being, we are here to help.

Contact Us

If you or a loved one is facing the need for adult guardianship, contact us today to schedule a consultation. We’ll work with you to understand your situation and guide you through the process, ensuring that your loved one’s rights and needs are fully protected.

You don’t have to go through this alone—let us help you navigate the complexities of adult guardianship with care and compassion.

The contents of this blog post are intended to convey general information only and not to provide legal advice or opinions.

What to Look for Before Signing a Nursing Home Contract

Choosing a nursing home for a loved one is never an easy decision. Some families often spend weeks — sometimes months — visiting facilities, researching care quality, reviewing activities and amenities, and considering specialized services such as dementia care. Location, physician access, and the overall environment all matter. In some situations, a hospital gives family caregivers very short notice of their options for their loved one.

The nursing home will decide where you’re loved one lives and how they live, maybe until the end of their life. Therefore, it’s vital that you have an experienced attorney, such as Kate Curler, review your nursing home contract.

A nursing home contract is a legally binding agreement. Like any contract, the terms can significantly affect your loved one’s care, your family’s financial responsibilities, and their legal rights. At the Law Office of Kate Curler LLC, we regularly review these contracts for our clients — and we’ve seen firsthand how important it is to read them closely.

Here are some key issues to keep in mind before signing:

1. Who Is Signing the Contract?

One of the most important questions is who is financially responsible under the agreement. If you’re signing on behalf of a loved one, be cautious about terms labeling you as a “guarantor,” “responsible party,” or “payor.”

In Illinois, children are not legally required to pay for a parent’s nursing home care. However, if you sign as a responsible party, the nursing home may attempt to hold you personally liable if the bill isn’t paid.

Tip: Never assume your signature is “just a formality.” Consult with an elder law attorney before signing.

2. Liability & Arbitration Clauses

Nursing homes can be held liable for negligence or harm caused by their actions (or inaction). But some contracts include language limiting this liability — or even requiring disputes to be resolved through binding arbitration instead of the court system.

Arbitration can restrict your legal options and often favors the facility. We often advise clients to cross out arbitration clauses before signing.

3. Daily Rates & Supplemental Services

The contract should clearly state the daily rate and exactly what that rate includes. It must also itemize any additional charges for supplemental services such as:

• Cable TV upgrades

• Laundry service

• Internet access

• Beauty/barber services

• In-room meal delivery

Be sure the contract does not list extra charges for services covered by Medicare or Medicaid, or for standard services that should be included in the daily rate, such as:

• Nursing services

• Dietary services and meals

• Routine hygiene items

• Activities and social programming

• Basic room maintenance

• Mental health support services

4. Resident’s Rights

Illinois law requires that every nursing home provide a Statement of Rights upon admission. These rights include (but are not limited to):

• Freedom from unlawful discrimination and deprivation of constitutional rights (including free speech, religion, and voting).

• The right to send/receive mail, use the phone, and have visitors.

• The right to manage personal finances.

• The right to retain and use personal property.

• The right to choose your own physician.

• Privacy in both living space and medical/personal care.

Always review this section carefully so you understand — and can help protect — your loved one’s rights.

Final Thoughts

A nursing home contract is more than just paperwork; it’s a roadmap for your loved one’s care and a legal agreement that can carry significant consequences.

If you’re preparing to admit a family member into a nursing home, don’t sign anything before reviewing it with an experienced elder law attorney. At the Law Office of Kate Curler LLC, we can help you understand the fine print, protect your family from unexpected liabilities, and ensure your loved one receives the dignity and care they deserve.

The contents of this blog post are intended to convey general information only and not to provide legal advice or opinions.

The Truth About Trusts

When I meet with clients to discuss their estate planning goals, our first discussion generally focuses on the difference between Wills and Trusts, as well as the pros and cons of each option. In many discussions, I have found that clients initially request a Will because they think that a Revocable Trust is only for the very wealthy. In this blog post, I discuss four myths about Trusts and why a Revocable Trust might be a good option to include in your comprehensive estate plan.

Myth 1: Only very wealthy people need trusts

As stated earlier, many of my clients believe that Trusts are only for wealthy individuals and families. In fact, Trusts can be a helpful estate planning tool for many individuals. Even for average individuals, drafting and properly funding a Trust can help your estate avoid probate court after your death and can help protect your family in the event of your incapacity or death.

Myth 2: You will always avoid Probate with a Revocable Trust

Yes, having a properly drafted and funded Trust will help your estate avoid Probate. However, the key word here is funded. Once you have worked with an estate planning attorney to draft your Trust, you need to ensure that all of your assets are titled in the name of the Trust. I have worked with clients who have had to open probate estates when their loved one died with a Trust but left one or two assets out of the Trust. Once you draft your Trust, take the time to review your assets to ensure that your Trust is properly funded.

Myth 3: You lose control of your assets with a Trust

One concern I hear from clients is that if they put together a Trust, they will lose control of their assets. With a Trust, the grantor (the person who established the trust and funds the assets into the trust) maintains control of all their assets until death, or until and unless they choose to resign as trustee and have a successor trustee act. During their lifetime, the grantor maintains control of their assets including how they are distributed to beneficiaries. With a Revocable Trust, the grantor can also edit or even revoke their Trust should circumstances change.

Myth 4: Trusts are expensive to create

Trusts are more expensive to create than Wills, however, they can save your estate and your loved ones money after your death by avoiding Probate court. Depending on the size of your estate, probate expenses could cost thousands of dollars. If there is a family dispute, the costs are even higher. By creating and properly funding a Revocable Trust when you are living, you are helping save your estate and loved ones significant amounts of money as well as relieving them from the stress of probate proceedings.  

If you have additional questions about Trusts, Wills, Probate, or estate planning generally, contact attorney Lauren Kaplan at lkaplan@curlerlaw.com or (312) 952-1077 ext. 2 for a free consultation.

Wrongful Death, Survival, and Probate Considerations

When someone dies because of the negligence of another, their loved ones can bring a lawsuit to recover damages for both injuries to the person who died (“decedent”) as well as the grief suffered by the family members of the decedent. These lawsuits are generally referred to as “Wrongful Death” lawsuits, but there are actually two different causes of action that family members can bring to recover damages.

Wrongful Death v. Survival

A survival action is a lawsuit brought by a representative of the decedent’s estate to recover damages for injuries to the decedent. These injuries could include pain and suffering, recovery for medical bills or lost wages and any other injury the decedent may have sought recovery for had they survived.

A wrongful death action, on the other hand, seeks compensation to the family members of the decedent for the losses they suffered as a result of the decedent’s death. The damages may include the grief and sorrow suffered by these family members. Many times, the representative will file a lawsuit including claims for both survival and wrongful death.

For our purposes, the major difference between a survival action and a wrongful death action is that the representative of the estate must open a Probate case in court to file a survival action.

Survival Actions in Probate Court

In previous blog posts, we have discussed probate court and the representative’s role in administering estates. Before the personal representative can file a survival action, a probate estate must be opened. If the decedent had a Will, the Will must be admitted to probate and the same process for opening the estate would apply as if there was no survival action. Once the probate estate is open, the attorney can file the survival action in the civil court.

During the probate administration, the representative of the Estate (Administrator or Executor) will collect the decedent’s assets, send notice to creditors, and otherwise perform the typical steps of administration. Once a settlement or verdict is reached in the survival action, the settlement must be approved by the court and then the probate judge will approve distribution pursuant to the Will, if any, or the Illinois rules of descent.

Some Considerations

It is important to keep in mind that when opening a probate case to pursue a survival action, the estate is still subject to creditors’ claims and medical liens. If the potential settlement may exceed the value of such claims, it is important to speak with an attorney to determine if it is worth it to file the survival action.

If you have questions about probate, estate planning, or elder law, contact attorney Lauren Kaplan at lkaplan@curlerlaw.com or (312) 952-1077 ext. 2 for a free consultation.

Estate Planning for Young Families

When starting a family and adjusting to life with a baby or young children, between diapers, bottles, daycare, and sleep regressions, putting together an estate plan often falls by the wayside. It is never easy to think about your own mortality, but putting together a comprehensive estate plan will help protect your family in the event of your death or incapacity. Next time you are scrolling through social media during a 3:00 a.m. feeding, consider these reasons why it is crucial to put together a comprehensive estate plan as a parent with minor children.  

1. Name a Guardian for Minor Children

One of the most important reasons to put together a Will or a Trust is to name a Guardian for minor children in the event something happens to both parents. The person or people you name as Guardian will take care of your children and manage all their needs including shelter, education, food, and day-to-day activities. The Guardian will also manage your children’s finances. Although a court proceeding is still necessary to officially appoint a Guardian, if you die without an estate plan naming a Guardian for your children, the Court may appoint someone you would not have chosen.

2. Decide How Your Money is Used

In addition to naming who is going to manage your children’s finances, your estate plan can direct how to use those funds should both parents die or become incapacitated. Both Wills and Trusts contain language which instruct the Executor or Trustee, respectively, how to use your funds for the benefit of your children and at what point your children can have access to the funds outright. You can custom tailor this for your family’s interests and values by setting out funds to pay for things such as higher education, religious school, music lessons, camp, etc. Properly drafted estate planning can provide financial protection for your children in the same manner that you would do if living.

3. Plan for Your Incapacity

Not only is estate planning critical to plan for your children in the event of your death or incapacity, but it is also equally important to have a plan in place for yourself. Powers of Attorney for Property and Powers of Attorney for Health Care both name an Agent and Successor Agent to manage your finances and medical decisions, respectively, in the event you become disabled or otherwise incapacitated. While your Will or Trust names a Guardian to take care of your children in the event of your incapacity, your Agent under the Powers of Attorney will handle your finances and medical care.  Without valid Power of Attorney documents in place, your loved ones will need to petition the court to name a Guardian to manage your finances and medical care. The Court-Appointed Guardian may not be who you would have chosen while you had capacity. Additionally, if you are incapacitated and there are young children in the mix, having to file for guardianship of you, as well as for your minor children, will make a stressful experience even worse for family and friends.

While planning for your death or incapacity might not be your first priority with a new baby or young children, completing your estate plan can provide peace of mind that your family is protected should the unthinkable happen.

If you have questions about estate planning, please contact attorney Lauren Kaplan at lkaplan@curlerlaw.com or (312) 952-1077 for a free consultation.

#FreeBritney and the Role of a Guardian

It is not very often that our practice of law becomes national headlines, but in recent months, the concept of “conservatorship” or guardianship (as it is called in Illinois and will be referred to in this blog post), has become a hot topic of conversation because of Britney Spears’s legal battle to regain her rights.

Britney Spears has been under legal guardianship for over a decade after suffering from mental health issues in the early 2000s. However, in recent years, a “#FreeBritney” movement began to protest Britney’s guardianship as well as Britney’s father acting as her guardian. There has been a lot of information circulating in the media regarding Britney’s rights and what role her guardian has in making decision on her behalf. While we are not opining on Britney’s guardianship, in this blog post, we will explore the role of a guardian and how the process of terminating a guardianship works in Illinois.

We previously explained the basics of a Guardianship, but for some quick background, a Guardianship is a legal proceeding through which a court appoints a guardian (a person, a non-profit agency or a financial institution) to make decisions for a person who does not have the mental capacity to make their own financial or health care decisions. In Illinois, you can have a guardianship of the person, guardianship of the estate or guardianship of both the person and estate.

Guardianship of the Person

The Guardian of the Person is responsible for making healthcare decisions on behalf of the person under guardianship or the “Ward”. This individual is responsible for ensuring that the Ward’s healthcare needs are met and will make decisions on behalf of the Ward, conforming as close as possible to what is believed to be what the Ward would have decided, if they were making their own decisions.  Among other decisions, The Guardian of the Person can make decisions to place the Ward in a facility such as a nursing home, if necessary. Every year, the Guardian of the Person files with the court an Annual Report providing the court with a status of the Ward’s health care, placement and their well-being.

Guardianship of the Estate

The Guardian of the Estate is responsible for the care and management of the Ward’s assets. The first step as Guardian of the Estate is to investigate the assets in the Estate to put together an Inventory for the court. This will allow the court to understand the value of the guardianship estate so that a yearly budget can be established for the use of the Ward’s funds. The Guardian of the Estate will transfer all the Ward’s liquid funds into a Guardianship Bank Account so that they can easily track the funds that go in and out of the Estate. Investments or real estate are sometimes liquidated, subject to court approval.

The Guardian of the Estate has authority to sign contracts on behalf of the Ward. For example, if the Ward owns any real estate that needs to be sold, the Guardian of the Estate, with the court’s permission, can enter into a contract for the sale of the property and sign as the Guardian of the Estate. Similar to the Guardian of the Person, the Guardian of the Estate can also make decisions relating to the Ward’s placement into a facility and can sign nursing home contracts, with the permission of the court, on behalf of the Ward.

Every year, the Guardian of the Estate is required to submit an Accounting to the court that shows money in and out of the estate. For that reason, as Guardian of the Estate, it is crucial to maintain good records of all transactions performed.

How to Terminate a Guardianship

On July 6, 2021, Britney testified in court that she did not know that she could petition for the guardianship to end. In Illinois, and in California where Britney resides, there are certain procedures the court requires to terminate a guardianship. It should also be noted that the majority of guardianships are granted when someone is at the end of life and experiencing dementia or other illnesses, which impair their ability to handle their own affairs. Therefore, termination of a guardianship is done rarely.

In Illinois, to terminate a guardianship, the guardian, the ward or any other “interested party” may file a petition for termination of a guardianship. The court will generally appoint a Guardian ad Litem to investigate the situation and submit a report to the court with their recommendation. The attorneys at the Law Office of Kate Curler LLC often act as Guardian ad Litem in Cook County and are experienced in this role.

A hearing will then be held where the parties will have the opportunity to present evidence as to why, or why not, the guardianship should continue. A medical report is not always required but can help the judge determine whether the ward continues to need a guardian. While the #FreeBritney movement has brought many of the issues with Britney’s guardianship to light, the fact is that the judge is not going to terminate the guardianship without specific procedures being followed.

As a final point, it is important to keep in mind that many of the court documents in Britney’s guardianship case are confidential so there is a lot of information that we, the public, are not privy to. In any event, guardianship should not be viewed as a method to strip the Ward of their rights and control their every movement. In fact, the Illinois statute states the goal of guardianship is to “encourage development of [the Ward’s] maximum self-reliance and independence.”

Guardianship is an important tool to help people who can no longer make decisions for themselves by taking care of their finances and health. We can only hope that the judge in Britney’s case has her reasons for maintaining the guardianship.  

This information is meant to provide a very brief overview of the roles of the Guardian of the Estate and Guardian of the Person. However, every guardianship case is different and will involve nuances that are not included here. If you are considering guardianship for a family member or loved one, it is important to work with an experienced guardianship attorney who can help you every step of the way. The attorneys at The Law Office of Kate Curler have extensive experience in every aspect of the Guardianship process.

If you have questions about guardianship, please contact our office at lkaplan@curlerlaw.com or (312) 952-1077 for a free consultation. 

What Does an Executor Actually Do?

When I am drafting Wills for clients, one of the questions I ask them to consider is who to name as Executor. In response, I am oftentimes asked, “well, what does an Executor actually do?” In this blog post, I explain the duties and responsibilities of an Executor of an estate so that you can make an informed and educated decision when putting together your estate plan.

For background, an Executor is the individual who administers the Decedent’s (the person who died) estate in Probate court, if the Decedent had a Will. If the Decedent died without a Will, that person is called an Administrator. The duties and responsibilities of an Executor and Administrator are essentially the same, but I will use the term Executor for purposes of this blog post. In Cook County and most Illinois counties, you must have an attorney represent you to serve as an Executor or Administrator.

The main role of the Executor is to handle the Decedent’s assets in the estate. The Executor, with the help of their attorney, will produce an Inventory of all assets in the estate. The assets could include personal property such as furniture, family heirlooms, cars, etc., bank accounts or investment accounts, or real estate. For personal property, the Executor is responsible for distributing these items to the Decedent’s heirs, pursuant to the terms of the Will. If there is no Will, these items should be distributed per agreement of the heirs or, if there is no agreement, as the Judge orders. For assets such as bank accounts, IRAs, investment accounts, or life insurance policies, the Executor can liquidate these assets and deposit those funds into a probate bank account or pass them onto heirs. For real estate, depending on if the Will provides specific instructions, the Executor may either transfer title of the real estate to the name of the heir(s) or sell the real estate and distribute the proceeds of the sale into the probate bank account.

The Executor is also responsible for destroying the Decedent’s credit cards, closing bank accounts, and changing the mailing address on all accounts to the Executor’s address. The Executor will also file final income tax returns and, if applicable, estate tax returns for the Decedent.

Additionally, the Executor handles the debts of the estate. In probate cases, creditors have six months to file claims against the estate. If they do not file a claim, an attorney can have these debts “disallowed”, and the Executor does not have to pay them. Claims filed after six months are also barred. If a claim is filed, depending on how much money is in the probate estate, the executor can pay these debts during those six months or wait until after the six-month period ends to pay the debts.  

After the six-month period is complete, the Executor, with the help of their attorney, will do a final accounting of the assets in the estate, showing the use of all funds and the funds left, and should then distribute the assets according to the Will, or the Illinois law, if there is no Will.

Please note that this list is not exhaustive, and every probate case can differ. For that reason, if you are named as an Executor, it is best to hire an experienced probate attorney to assist. The attorneys at the Law Office of Kate Curler have extensive probate experience and can help you every step of the way.

If you have questions about being an Executor, probate or estate planning generally, please contact our office at lkaplan@curlerlaw.com or (312) 952-1077 for a free consultation.  

Make Estate Planning Part of Your New Year’s Resolutions

New Year’s Resolutions can come in all shapes and sizes. In 2021, we have heard New Year’s resolutions that include, wearing “real pants”, less “doomscrolling” on twitter, and of course, seeing friends and family in person. However, a recent study conducted by fitness app Strava found that most people are likely to give up on their New Year’s resolutions by January 19. Many of us start the year off setting big goals only to give up when those goals seem unattainable, or even a little bit out of reach. If you have been thinking about creating or updating your Estate Plan as part of your New Year’s resolutions, now is the time to act! The attorneys at The Law Office of Kate Curler are happy to help you create or update your Estate Plan and make the process as smooth as possible.

4 Most Important Estate Planning Documents

Creating an Estate Plan does not have to be complicated and does not merely entail planning for your death. By putting together these four estate planning documents, you are responsibly planning for your future, ensuring that your loved ones can properly care for you in the event of your incapacity and that they can distribute your assets at the time of your death, per your wishes.

Powers of Attorney for Property and Powers of Attorney for Health Care both name an Agent and Successor Agent to manage your finances and medical decisions, respectively, in the event you become disabled or otherwise incapacitated. If you take nothing else from this blog post, remember that valid and properly executed Powers of Attorney can help avoid Guardianship. As we previously discussed, Guardianship can be a long and expensive court process where a judge must approve all decisions made on behalf of the person under Guardianship. Power of Attorney documents are a simple and cost-effective way to avoid this hassle.

Wills and Revocable Trusts are two Estate Planning documents that give instructions as to how you want your assets distributed at the time of your death. Wills, unlike properly executed and funded Trusts, pass through probate so your assets will be distributed through court procedures. A Trust becomes effective at the time you sign it and is a living document which you administer throughout your life. At the time of death, if your Trust is  properly funded, your assets will be immediately available to your named beneficiaries. There are different reasons to choose to draft a Will rather than a Trust and vice versa. The important thing to remember is that without proper estate planning documents, your assets will be distributed according to Illinois law which might not be according to your wishes. For example, if you prefer a charity over your cousin, who never called to see how you were during Covid, now is to formalize that in your Estate Plan!

New Year’s Resolutions oftentimes are hard to follow-through. The attorneys at The Law Office of Kate Curler can help check off an item from your to-do list and work with you to create an Estate Plan that fits your unique needs.   

If you have questions about estate planning, please contact attorney Lauren Kaplan at lkaplan@curlerlaw.com or (312) 952-1077.

What is the Role of the Guardian ad Litem in Guardianship Cases?

In a prior blog post, we discussed adult guardianships including the basic guardianship types and who can be a guardian in Illinois. While we previously focused on the guardian, we now want to discuss another important player in the guardianship process – the Guardian ad Litem.

A Guardian ad Litem (GAL) is an attorney, or specially trained non-attorney, a Judge appoints in a guardianship case to look out for the best interest of the alleged person with a disability. A GAL serves as the “eyes and ears” of the court and gives his or her opinion as to whether guardianship is necessary and whether the proposed guardian is appropriate. The GAL meets with the alleged disabled person (the “Respondent”), to report back to the court if they are objecting to guardianship or want to enforce their other rights, such as having an attorney appointed for them.

A GAL is not appointed in every guardianship case. Generally, the deciding factor is whether the Respondent can come to court and agrees with the guardianship, without any family conflicts or cross-petitions.

The Investigation

To make a recommendation to the court regarding the guardianship and the proposed guardian, the GAL conducts an investigation.  The GAL meets with the Respondent (whether in person or virtually) to inform them of the guardianship action and his or her rights during the guardianship process. The GAL will talk to the Respondent about his or her views on the guardianship process, whether the Respondent feels guardianship is necessary, and whether the Respondent approves of the proposed guardian. It is important to remember that the GAL is an independent party, but the GAL’s job is to look out for the best interests of the Respondent. 

The GAL usually also interviews the individual petitioning the court for the guardianship (the “Petitioner”), and, if appropriate, any other third parties who could help the GAL determine  whether the guardianship and the proposed guardian are appropriate.

If they interview the Petitioner, The GAL may ask the Petitioner questions about their qualifications to be a guardian as well as basic history about the Respondent and why the Petitioner feels guardianship is necessary.

After the investigation is complete, the GAL provides an objective written report to the court advising the court of his or her findings, whether the GAL believes appointment of a guardian is necessary, whether the Respondent objected to a guardian being appointed for them or asked for their own attorney, and if they recommend the proposed guardian be appointed. In many cases, the role of the GAL ends after the court appoints a guardian. However, in cases that are particularly complicated, or involve disputes as to who should be the guardian, the Judge may keep the GAL on the case. 

Guardianship can be a complicated process with many nuances. The attorneys at The Law Office of Kate Curler have extensive experience representing the different parties to the Guardianship case as well as acting as the GAL. If you have questions about guardianship, please contact attorney Lauren Kaplan at lkaplan@curlerlaw.com or (312) 952-1077 for a free consultation.

When Does Your House Stop Being Your Home If You Have to Apply for Medicaid?

As we have discussed in previous blog posts, Medicaid is a state and federal program which pays medical costs for low income adults with or without children. However, most people do not realize that Medicaid also pays for nursing home care as well. For seniors who require long-term care and meet the financial eligibility criteria, Medicaid has a program which covers long-term care and pays for almost 100% of their nursing home costs.

In 2020, in Illinois, to qualify for Medicaid long-term care benefits, applicants must have less than $2,000 worth of non-exempt assets. As an elder law attorney, one of the biggest questions I am faced with when helping individuals with Medicaid planning, is “can I keep my house?” And in typical attorney fashion, the answer is: it depends. In this article, we are going to discuss situations in which you can keep your home while remaining eligible for Medicaid.

Homestead Property

If a Medicaid applicant who is applying for long-term care benefits to pay for nursing home care has a “homestead property”, i.e. their home, it will be regarded as an exempt asset under the Medicaid rules as long as it is occupied by the applicant, the applicant’s spouse or the applicant’s minor, disabled or blind child. The home will also be regarded as an exempt asset when the applicant intends to return to the home from a nursing home or medical institution. The Federal Medicaid guidelines use a subjective standard in making this determination and the house will be exempt as long as the applicant expresses an intent to return home.

If the Medicaid applicant does not intend to return to their home, it can still be exempt as homestead property if it is occupied by either:

1.    The person’s spouse;

2.    A dependent sibling of the person,

3.    The person’s child under age 21 or the person’s adult child who has a disability; or

4.    The person’s son or daughter who provided care to the person and resided in the home for the two years immediately before the person moved to the long-term care facility.

However, if the Medicaid applicant abandons homestead property without the intent to return, the property becomes non-homestead property and will be considered a non-exempt asset. Another important point to remember is that the Medicaid applicant’s income cannot be used to maintain this home; that income must be transferred directly to the nursing home (some exceptions are made for spouses.) If the occupant cannot afford to maintain the home, that should be a factor in a discussion of whether the home needs to be sold.

Transferring Homestead Property

Be careful if you are considering transferring your home as a gift to avoid it be counted as an asset. Medicaid treats the transfer of the applicant’s home like any other asset and you may incur a penalty making you ineligible for Medicaid for a period of time. Medicaid provides a five-year “lookback” period in determining whether the applicant transferred assets for less than fair market value. Timing of the transfer and when the applicant applies for Medicaid is also very important.

If done correctly, the applicant may be able to transfer the home to the following classes of people without incurring a penalty:

1.    The applicant’s spouse;

2.    The applicant’s minor child or disabled adult child;

3.    A sibling with an ownership interest in the home who has been living in the home for at least one year before the applicant went to a nursing home; or

4.    An adult child with no disabilities who has been living in the home for at least two years prior to the applicant going to a nursing home, AND, who cared for the applicant, allowing the applicant to live at home rather than in a nursing home. 

It is important to reiterate that transferring your home to the above individuals does not guarantee the transfer will be exempt from Medicaid consideration. If Medicaid finds that the transfer was done solely for the purpose of making the applicant eligible for Medicaid, it may be counted as an asset and you may incur a penalty. A Medicaid Planning attorney or benefits specialist is essential to ensure your application is done correctly and your assets are properly titled to better your chances of approval. 

While this article is meant to provide general information about Medicaid asset exemptions, these rules are not absolute and should not construed as legal advice. If you have questions about Medicaid, Medicaid Planning or asset exemptions, please contact attorney Lauren Kaplan at lkaplan@curlerlaw.com or (312) 952-1077 for a free consultation.

How A Geriatric Care Manager Can Help Families and Caregivers

In numerous areas of life, we turn to professionals to help us navigate unfamiliar territory. For example, you may use a financial advisor to help understand your finances and plan for the future, a CPA to do your taxes, or, you may contact an attorney to help with your legal needs.  

However, when it comes to caring for our seniors, many people try to navigate through the world of elder care options, public benefits, and medical care without assistance. Just as a financial advisor can help you handle your finances; a geriatric Care Manager can help guide you through the world of elder care so you can provide the best possible care for your loved one.

What is a Care Manager?

A geriatric Care Manager is a professional who can provide practical help, advice and advocacy for seniors and caregivers. A Care Manager is an individual who has significant training in aging and senior care generally as a social worker, nurse, or other healthcare professional. Some care managers who are licensed RN’s might also call themselves “Nurse Advocates.”  Care Managers are trained to identify any areas of concern for the senior and find resources to help the family caregiver or family create a plan so that the senior can live as safely as possible.  

Ways a Care Manager Can Help  

Some of the ways that a Care Manager can assist you in caring for your loved one are:

• Evaluating the senior’s current living situation and determining if it is the best and safest option;

• Arranging in-home care and home maintenance services including yardwork, Meals on Wheels and transportation;

• Coordinating medical treatment by making appointments, attending doctor visits, recommending doctors and arranging for transportation;

• Providing regular check-ins and assessments to see how the senior is doing and review their medication intake and vitals, if necessary;

• Helping your loved one understand their financial, medical and legal needs and offering referrals to other professionals;

• Creating short-term or long-term care plans;

• Assistance with moving your loved one to an assisted living facility or nursing home; and  

• Providing stress relief for the family caregiver.

Additional Things to Keep in Mind

As opposed to some other types of professionals, Care Managers do not have state or federal licensing requirements or approval, though most have certifications in other fields such as social work or nursing. When looking for a Care Manager, do your research and check their references. Additionally, it is important to note that Care Manager services are usually not covered by insurance, Medicaid or Medicare. Most Care Managers charge hourly rates that are paid for out-of-pocket. However, many people find that using a Care Manager saves money in the long run because they can offer their expertise and support to struggling or stressed out family caregivers, to create a care plan specifically tailored to the senior’s needs.

The Law Office of Kate Curler, LLC works closely with Care Managers all over the Chicagoland area. If you believe that your family could benefit from working with a Care Manager, or if you have any questions about Care Managers, contact attorney Lauren Kaplan at lkaplan@curlerlaw.com or (312) 952-1077 for a free consultation.

Resources to Ensure That Your Voice is Heard on November 3rd

Election day is quickly approaching. This year, more than ever, it is important to make sure that you have a plan to cast your ballot in a safe and healthy way. Recently, the organization, Justice in Aging sent out an e-mail listing multiple resources to make sure that older adults and individuals with disabilities are able make their voice heard in this election. We have gone through these resources and summarized them below.

-          The National Council on Aging put together a state by state guide for Healthy Voting. One of the tips the National Council on Aging offers here is to vote by mail. However, the guide also gives advice for staying healthy if you vote in person. This includes wearing a mask, maintaining physical distance of 6 feet between you and other voters or poll workers, and washing your hands before and after you cast your ballot.

-          The Centers for Medicare and Medicaid Services (CMS) issued a memorandum regarding nursing home residents’ right to vote. In the memo, CMS lists the federal laws that affirm the right of residents to vote. The memo states that nursing homes should have a plan to make sure that residents are able to exercise their right to vote whether in person or by mail. The memo additionally provides resources for nursing home residents to file a complaint if they believe their right to vote has been violated.

-          The National Long-Term Ombudsman Resource Center posted a Voting Resources guide on its website. The website offers resources for both nursing home residents and ombudsmen, such as advocacy programs, Voter ID requirements by states and programs for ombudsmen to implement to help make sure the right to vote is protected in nursing homes.   

-          The American Bar Association Commission on Law & Aging and the Penn Memory Center offers a Quick Guide for Assisting Cognitively Impaired Individuals with Voting. Importantly, this guide explains that a medical diagnosis of cognitive impairment does not disqualify a person from being eligible to vote. The authors offer several helpful tips when assisting a cognitively impaired individual with voting including, listening carefully, speaking clearly, reading body language, and timing the discussion on voting appropriately.

-          The National Guardianship Association offers helpful advice for guardians to help protect the rights of the individual under guardianship. Illinois does not have any disability-restrictions on the right to vote in elections. As such, guardians should ask the person under guardianship if they wish to vote, and if so, discuss different voting options with the individual so that this goal can be accomplished.

-          The Arc, an organization dedicated to protecting the human rights of people with intellectual and developmental disabilities, issued a Disability Voter Guide. This guide is meant to help people with disabilities understand, in part, the voting process, where to learn about the candidates, how voting works and what to do if your voting rights are violated.

What is Probate and Why Do People Want to Avoid It?

In previous blog posts, we emphasized the importance of proper estate planning so your loved ones know how to distribute your assets at the time of your death. One of the main reasons we advise our clients to invest time and money in proper estate planning is so that their property does not go through the Probate court process. This post will give a brief background of Probate, why some people seek to avoid it, and steps you can take to turn your property into non-probate assets.

Probate at a Glance

Probate is the process through which a dead person’s, called a “Decedent”, assets are distributed to his or her heirs through the Probate Court. However, it is not as easy as submitting a Will to the court and then waiting for a check. Before any of the Decedent’s property can be distributed, somebody needs to be appointed either the Executor of the estate if the Decedent had a Will, or Administrator of the estate if the Decedent did not have a Will. For purposes of this blog, we will refer to that person as the “Representative.” The Representative is responsible for submitting the Will to the Probate Court, if applicable, sending notice to  creditors and beneficiaries, identifying and inventorying the Decedent’s property, appraising and potentially selling the Decedent’s real estate, paying the Decedent’s taxes and debts and, then finally distributing the assets according to the Decedent’s wishes in the Will, or by Illinois law.

Why Do People Want to Avoid Probate?

While Probate is sometimes necessary to distribute a Decedent’s assets, there are valid reasons why people seek to avoid Probate Court when creating their estate plans.

First off, Probate can be an expensive process. There are court filing fees, creditor notice fees and attorney’s fees, if you hire an attorney to help with the probate process. Additionally, the Representative of the estate is entitled to compensation for their time and expenses paid to carry out their role in administering the estate. Secondly, the probate process can take a long time. On average, a probate case takes between six to nine months. During this process, the Decedent’s heirs will not have immediate access to the Decedent’s money and may be responsible for paying for the Decedent’s funeral, burial, and maintenance and insurance for real property or vehicles, among other expenses. These items can be costly and can cause huge stresses on family members during a difficult time.

How Can I Avoid Probate?

As an initial matter, if you own less than $100,000.00 in assets, you can avoid the probate process in Illinois by completing and signing a Small Estate Affidavit. With a Small Estate Affidavit, the Decedent’s property can be transferred without court involvement.

However, even if you own more than $100,000.00 in assets at the time of your death or own real property, there are other ways to plan so your assets do not pass through probate*:

1.      Put your assets into a Revocable Trust. With a properly drafted and funded Revocable Trust, your assets will be titled in the name of the trust and will avoid passing through probate.

2.      Designate a beneficiary for insurance policies, investment, and retirement accounts.  At death, the assets or proceeds will automatically transfer to your named beneficiary.

3.      Real Estate held jointly with survivor’s rights will not go through probate. The property will pass directly to the joint owner.

4.      Payable Upon Death or Transferable upon Death notations in paperwork for vehicles, bank accounts, investment and retirement accounts will help these assets go straight to the beneficiary and avoid probate.

No matter your thoughts on the Probate process, having a properly drafted estate plan will ensure that your assets are distributed according to your wishes. The Law Office of Kate Curler LLC is prepared to put together an estate plan that suits your needs. If you have questions about probate or planning generally, please contact Attorney Lauren Kaplan at lkaplan@curlerlaw.com or (312) 952-1077 for a free consultation.

*This list is not exhaustive, and you should consult with an attorney to make sure all of the assets you want to avoid probate are properly titled.

In Memory of Justice Ruth Bader Ginsburg (“RBG”)

The Law Office of Kate Curler was extremely saddened to hear of the passing of Justice Ruth Bader Ginsburg, known to many as “Notorious R.B.G” last Friday. RBG was a trailblazer who spent her life as a litigator and Supreme Court Justice fighting for women’s rights and working to ensure that all people were afforded equal protection under the law. In this week’s post, as a tribute to RBG, we are giving a little history lesson and talking about the Supreme Court case of Reed v. Reed. Reed was RBG’s first case to make it to the Supreme Court years before she became a Supreme Court Justice. It was also the first time the Supreme Court ever struck down a law that treated men and women unequally. Interestingly, this case also happens to involve one of our areas of practice – estate administration.

In Reed v. Reed, the Idaho Probate Code specified that in appointing administrators of an estate “males must be preferred to females”. After their son’s death, Cecil Reed was named the administrator of his son’s estate instead of Sally Reed. Sally challenged the law, and in a unanimous decision, the Supreme Court struck down the law and held that treating men and women differently under the law was unconstitutional under the Equal Protection Clause of the 14th Amendment. After this decision, hundreds of laws in the U.S. Code that treated women differently than men with no basis were changed. This case also set the stage and legal framework for future Supreme Court decisions to recognize discrimination on the basis of sex, whether female or male, as a violation of the Constitution. The decision in this case, and the many more that followed, were made, in no small part, due to the valiant efforts and jurisprudence of RBG.

On a personal note, RBG was, and will continue to be, a huge inspiration to me as a woman and attorney. When RBG was a law student at Harvard, she, along with the 8 other female students, was asked by the Dean what she was doing at the law school, taking a seat that could have been held by a man. While it is hard to imagine that scenario today with the majority of law students being women, without the tireless work that RBG did to fight inequality, The Law Office of Kate Curler, owned and operated by women, would not be here today. Imagine trying to run a business without being able to open your own credit card.

Every day as our firm works to advocate for senior citizens, we try to emulate RBG’s never-ending quest for justice. On the wall of RBG’s office hangs a phrase from the Book of Deuteronomy, “Justice, Justice You Shall Pursue.” RBG spent her life pursuing, and fighting for, justice for all people. May her memory inspire a new generation of women and men to fight for justice and equal treatment under the law.

In loving memory of Justice Ruth Bader Ginsburg. May her memory be a blessing.

Guardianship Basics

One of the most difficult decisions that families can face is the decision to file a Petition for Appointment of a Guardian. This becomes necessary when a loved one cannot make their own medical decisions or manage their finances. Most often, the person for whom the family is seeking guardianship is an elderly parent or relative. However, it can also be someone who has lost capacity because of an accident, illness or addiction. You can also have a guardianship over a minor or an adult suffering from mental illness. In this post, we explain what guardianship is, who can be a guardian, as well as some ways to prepare in advance to avoid guardianship.  

What is Guardianship?

Guardianship is a legal proceeding through which the court appoints a guardian to make decisions for a person who does not have the mental capacity to manage their healthcare or finance decisions.

Basic Types of Guardianship

In Illinois, you can have a guardianship of the person, guardianship of the estate or guardianship of both the person and the estate. A guardian of the person is appointed when an individual with a disability cannot make or communicate responsible decisions regarding his or her personal care. The guardian can then make decisions on behalf of the incapacitated individual including decisions about medical treatment, where they live, benefits, and other needs. A guardian of the estate is appointed when an individual is unable to make or communicate responsible decisions regarding the management of their finances and/or property. The guardian of the estate is charged with overseeing financial matters on behalf of the incapacitated person and is authorized to make decisions about their funds and property.

Illinois courts also appoint Limited Guardians of the Estate and Person, when a person needs some help with decision-making but has other powers reserved to them, where they can act on their own.

Who Can Be A Guardian and How is a Guardian Appointed?

A person can be a guardian if they are over the age of 18, a legal resident of the United States, of sound mind and is not a person with a disability under the law. Additionally, the proposed guardian must not have been convicted of a felony unless after reviewing the facts of that offense, the court finds appointing the guardian to be in the best interest of the person with a disability. However, the court will not appoint a person a guardian if they have been convicted of a felony involving harm or threat to a child, elderly person or a person with a disability.  That said, the individual still needs be found disabled by the court through proceedings during which the court will determine whether the individual is in need of a guardian and whether the proposed guardian is suitable.

Is Guardianship always necessary?

Though guardianship is an effective court process to ensure that your loved one is taken care of, one way to potentially avoid needing guardianship is by ensuring you have power of attorney documents.  A Power of Attorney for Health Care and a Power of Attorney for Property give your agent many of the same powers as a guardianship, without court involvement.

While petitioning the court to be a Guardian over a loved one can be hard and oftentimes invoke strong emotions, sometimes it is the only way to ensure your loved one is safe and financially secure. The Law Office of Kate Curler’s attorneys takes a holistic approach to come up with the best plan  for the person under guardianship to preserve as much independence for the senior or incapacitated person as possible, as long as they and their assets are safe.

This post is meant to give you basic information about Guardianship in Illinois. If you have questions about Guardianship, please contact Attorney Lauren Kaplan at lkaplan@curlerlaw.com or (312) 952-1077 for a free consultation.

The contents of this blog post are intended to convey general information only and not to provide legal advice or opinions.

A Brief Overview of Wills and Trusts

For many people, their only knowledge of estate planning comes from what they see in movies and television shows. I am reminded of a scene from Harry Potter and the Deathly Hallows where Harry, Ron and Hermione sit patiently waiting to learn what was bequeathed to them in Dumbledore’s Will.  Though entertaining, the portrayal of estate planning in movies is oftentimes inaccurate and simplistic. For one thing, Harry Potter gives no insight into the Ministry of Magic Probate Court, but also, Dumbledore probably would have preferred to have a Trust in his estate plan, given his propensity for secrecy and privacy. Jokes aside, in this post, we discuss some of the differences as well as advantages and disadvantages of two of the most common estate planning documents – Will and Trusts.

There is no one-size-fits-all in terms of estate planning. A Will might be perfectly suitable for one person while a Trust might be more appropriate for another. Below are some of the differences between Wills and Trusts and considerations when you decide which best suits your needs.

 A Will is a legal document which sets forth your wishes regarding the distribution of your property when you die.  A Will is effective when you die and, if your estate has certain types of property or there is a certain amount of assets in your estate, your property will pass to your heirs through legal proceedings called probate. Some of the advantages of having a Will include the ability to appoint a guardian for your minor children in the event you or your spouse pass away, simplicity during your lifetime regarding how your assets are titled, and Wills are typically less expensive than a Trust.

Some potential disadvantages for some people are the fact that Wills become public record through the probate process and probate can be a long, arduous, and expensive process for your heirs. In most cases, your heirs will not receive any assets for at least 6 months after opening the estate.

A Revocable Living Trust is a type of trust created to hold ownership of an individual’s assets and determine how your assets will be handled in the event of your incapacity and then after you die. During your lifetime, you can take any action you choose, as to the assets in the Trust. Unlike a Will, a Revocable Living Trust can become effective immediately. Some of the advantages of a revocable living Trust include the fact that, if properly prepared and funded, the assets in a Trust avoid the probate court, the Trust can (and should) contain provisions for determining when you no longer have capacity outside of guardianship court and instruct the Trustee on how to take care of you and your finances in case of incapacity. Additionally, unlike a Will, the administration of a Trust is private and not a public record.

Some potential disadvantages of a Revocable Living Trust are that they are typically more expensive than a traditional Will and they require lifetime management of the Trust assets by a Trustee.

Whether you are interested in a Will or a Trust, it is important to make sure your estate planning documents are properly drafted and accurately reflect what you want done with your assets. The attorneys at The Law Office of Kate Curler LLC are ready to answer any of your estate planning questions and put together an estate plan that suits your needs. 

If you have questions about Wills, Trusts or estate planning generally, please contact Attorney Lauren Kaplan at lkaplan@curlerlaw.com or (312) 952-1077 for a free consultation.

The Power of the Power of Attorney and other Advanced Directives for Health Care (Part 2 of 2)

Our last post focused on the Healthcare Power of Attorney and the powers that it gives your agent. As opposed to a Healthcare Power of Attorney, a Living Will is a legal document, as part of your estate plan, which spells out your end-of-life healthcare wishes. While we saw in the last post that only one-third of the American population had a designated healthcare power of attorney, less than one-third of the population had completed a Living Will that contains end-of-life care wishes.

Your Living Will applies when you are alive, but unable to communicate. It can “speak” for you if your Agent under your healthcare directive is not available or you do not have one appointed. The National Institute on Aging poses the following questions when formulating an advanced care plan, “Is your main desire to have the most days of life? Or, would your focus be on quality of life, as you see fit?” These questions require you to think about your values and your desires for the end of your life. Some of the other questions you should consider are:

• Whether you want treatment to extend your life in any situation?

• What would you want to happen if you can no longer breathe on your own or feed yourself?

• What types of pain management medications or procedures would you want?

• Are you comfortable with a ventilator if you are unable to breathe on your own, and for how long?

• What type(s) of palliative or comfort care do you prefer? and

• Do you want to a DNR (do not resuscitate) order for your care?

Additionally, your Living Will can also include instructions for after death including whether you want your organs and tissue donated, or whether you want to donate your body for science.

Of course, no advanced directive can predict every possible scenario and the questions provided here are not exhaustive. For that reason, it is very important to take the time to think about your end-of-life wishes and about the person whom you trust to make decisions which align most closely with your values and wishes. While this self-introspection is certainly not easy, advanced care planning can help honor your end-of-life wishes while providing clarity for your loved ones during an unsettling time.

The Power of the Power of Attorney and other Advanced Directives for Health Care (Part 1 of 2)

A 2017 article in the journal “Health Affairs” cited a University of Pennsylvania Perelman School of Medicine study regarding advanced directives. The study of more than 795,000 Americans found that only one-third of the population had designated a healthcare power of attorney. As an elder law attorney, I often counsel clients with legal issues relating to not having this important document drafted and signed.

While we all hope to age gracefully with sound mind and body, for many people there comes a time where they are unable to make their own healthcare decisions. In these situations, it is very important to have a document in place so someone you trust can make decisions for you and enforce your end-of-life wishes.  These estate planning documents are called Advanced Directives. Without an advanced directive, you run the risk of a county agency or a Judge making decisions for you through guardianship proceedings, which can be expensive, time-consuming and add stress to your family during a health crisis.

Advanced directives are not just for older adults. Anyone over 18 should have an advance directive completed. Advanced directives cover more than end of life decisions. In fact, a well-written and properly executed advanced directive can enable the person you name (your “Agent”) to make a wide range of healthcare decisions for you, if you cannot. The two most common advanced directives are Powers of Attorney for Health Care and Living Wills. In this post, we discuss the important Power of Attorney for Health Care.

A Power of Attorney for Health Care has far more power than just allowing your Agent to make end-of-life decisions for you. In fact, the decisions that your Agent can make include:

-          To admit or discharge you from a hospital or nursing home to home;

-          Powers to move you from a bad nursing home to a better facility;

-          Which treatments or medicines you receive;

-          Whether you are buried or cremated;

-          The authority to seek a second opinions from a healthcare provider, and

-          Control over who has access to your medical records.

You should choose someone you trust as your health care agent. When determining who you want to appoint as your agent, it is important to think about who you would want to make decisions and fight for you to get the best care if you cannot advocate for yourself.

Our next post will focus on a different, but equally important type of advanced directive – the Living Will.