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Changes to the Illinois Health Care Power of Attorney

Web Admin - Friday, January 23, 2015

healthcare power of attorney in Illinois, Palatine estate planning attorneysHealth care powers of attorney are some of the most serious estate planning decisions that people will have to make throughout the course of their lives. Most estate planning decisions relate to structuring assets and ensuring that children and relatives are properly cared for. Health care powers of attorney are different. They are legal documents that allow people to determine how they want their loved ones to make health care decisions on their behalf in the case that they are unable to themselves. These sorts of documents are regulated by the state, and the Illinois legislature recently updated the law that governs health care powers of attorney used in the state, adding new notice requirements and changing the calculus for end of life decision making.

New Notice Requirements

One of the biggest changes that the update made was a complete revision of the notice that precedes the actual health care power of attorney form. The new form breaks the notice provision down into nine headings that have questions beneath them. These headings include:

  • - What Are the Things I Want My Health Care Agent to Know?
  • - What Kind of Decisions Can My Agent Make?
  • - Whom Should I Choose to Be My Health Care Agent?
  • - What If My Agent Is Not Available or Not Willing to Make Health Care Decisions for Me?
  • - Will Happen If I Do Not Choose a Health Care Agent?
  • - What If There Is No One Available Whom I Trust to Be My Agent?
  • - What Do I Do With This Form Once I Complete It?
  • - What If I Change My Mind?
  • - What If I Do Not Want to Use This Form?

Each of these sections include questions and answers that allow the power of attorney form to be filled out in different blocks.

Changes to End of Life Decision-Making

The law also made some important changes in the way that it frames end-of-life decisions. The biggest change in this manner is the fact that the new power of attorney form now distinguishes quality of life from quantity of life. Essentially the new form provides a check box for people to decide whether it is more important for them to have a life they can live fully or whether they would be willing to extend their lives for a hope at making a recovery. The goal of this new distinction is to help people better express what sorts of values their health care should be trying to accomplish.

Estate planning is a complex field that covers everything from health care decisions to future tax liabilities. If you have questions about this new health care power of attorney or some other aspect of estate planning, contact an Illinois estate planning lawyer today. The law firm of Drost, Gilbert, Andrew & Apicella, LLC serves clients in many northwest suburban locations, such as Long Grove, Riverwoods, Palatine, Arlington Heights, and Barrington.

About the Author: Attorney Jay Andrew is a founding partner of Drost, Gilbert, Andrew & Apicella, LLC. He is a graduate of the University of Dayton School of Law and has been practicing in estate planning, probate, trust administration, real estate law, residential/ commercial leasing, contracts, and civil litigation. Since 2005, Jay has been a Chair of the Mock Trial Committee for the Annual Northwest Suburban Bar Association High School Mock Trial Invitation which serves over 240 local Illinois students each year.

Avoiding Life Insurance Loopholes

Web Admin - Tuesday, November 25, 2014

life insurance loopholes, Illinois life insurance lawyerThe insurance industry is known for having incredibly complex contracts, and life insurance is no exception to this rule. As you might expect, the reason for this is money. According to statistics from the Insurance Information Institute, life insurance is a multi-billion dollar industry, and the companies want to keep it that way. 

One of the ways that life insurance companies do this is by fighting against paying valid claims. Money they do not have to pay out is money that they can ultimately keep for themselves, and even just delaying the payments can be profitable for them. Life insurance companies have two main tools for insurance claim disputes, policy cancellations and policy exclusions.

Policy Cancellation

A policy cancellation is exactly what it sounds like. The insurance company cancels a claimant's policy in order to avoid paying out a claim. This is a particular problem during the first two years of the policy's life, which is known as the contestability period. During this period, the insurance company may examine the policy looking for misrepresentations or omissions, and then cancel the policy if they find any. They even have the option of doing this after a person has already made a claim, and they are allowed to cancel regardless of whether the omitted information has anything to do with the actual cause of death.

A similar issue, but one that can last beyond the contestability period, is the material misrepresentation clause. This clause allows the insurer to cancel the policy at any time if they discover a lie or omission that would have caused them to not issue the policy in the first place. However, even people with perfectly accurate applications are not safe from having their claims contested.

Exclusions

In cases where the person's application cannot be contested, insurance companies may still attempt to avoid paying out for claims based on policy exclusions. These exclusions are specific events or actions that the insurance company has excepted from the policy. There are a variety of different policy exclusions that insurers may use, and they vary from policy to policy, but they may include:

- Dangerous activities like skydiving;
- Suicide;
- Alcohol and drug use; and
- Illegal activities.

The exact limits of these exclusions can depend on the precise policy language. For instance, some policies’ exclusions for alcohol and drug use exclude only illegal substances, while others exclude legal ones too. This can be especially complicated because some policies require the substance to be the cause of the death, while others only need the substance to be in the person's system at the time of death.

Life insurance contracts are complicated legal documents, and the insurance company is going to have a lawyer on their side. If you want to even the odds, contact a Palatine life insurance attorney today. Our firm assists people in insurance disputes all over the northwest suburbs, including in towns like Inverness, Deer Park, Barrington, Arlington Heights, Schaumburg, Des Plaines, Rolling Meadows, Crystal Lake, and Buffalo Grove.

Ken ApicellaAbout the Author: Attorney Ken Apicella is a founding partner of DGAA focusing in the areas of personal injury, employment, insurance coverage disputes, and civil litigation. Ken earned his J.D. from DePaul University College of Law in 1999. He has been named a SuperLawyers Rising Star and a Forty Illinois Attorneys Under Forty to Watch. Ken has written and lectured for the Illinois Institute for Continuing Legal Education and regularly serves as a moderator at Northwest Suburban Bar Association's Continuing Legal Education seminars.

Homestead Rights in Illinois

Web Admin - Thursday, October 23, 2014

homestead rights in Illinois, Palatine estate planning lawyerWhile there are many well known government programs and policies designed to provide relief during difficult economic times, there are other laws people can take advantage of that are less commonly talked about. One of these laws is known as “homestead rights.” Homestead rights are a protection provided by Illinois law that provide certain immunities from debt collection efforts by creditors. However, these immunities are not absolute, so it is important for people exercising their homestead rights to understand the exact limitations of those rights.

What Homestead Rights Are

Homestead rights are a statutory protection against creditors designed to help people avoid becoming homeless because of changing economic circumstances. The rights allow the debtor to exempt $15,000 worth of real estate from the collection efforts of creditors or their agents. Additionally, if a married couple owns the home, then they can pool their homestead rights together to protect the same house. This gives them an exemption of $30,000. This exemption also survives the death or desertion of a spouse. The exemption can also be passed down to the children of the married couple, at least until the youngest child turns 18.

Illinois' homestead laws are also slightly different than the laws in some other states. Many states choose to restrict the amount of acreage that a person can use the homestead exemption on in addition to capping the total value of the property. Illinois has no such acreage cap. This means that the size of the property is irrelevant to the homestead rights, and that it is purely an issue of how much the land is worth.

What Homestead Rights Do Not Protect

Notably, homestead rights do not provide absolute protection against every type of creditor. For instance, the state legislature wrote an exception into the protection for the purposes of state taxes, so if the creditor is the state of Illinois then the exemption does not apply. Similarly, homestead rights are created by state law, which federal law can supersede, so they provide no protection against the federal government's collecting taxes either. The rights also do not function in many circumstances where the money owed is related to the property itself. A person who uses the house as collateral for a mortgage does not get protection if their home is being foreclosed. Additionally, if the person owes money to contractors for doing work on the home, then the homestead rights do not apply to those debts. Further, the homestead rights can be signed away in writing, which would also remove their protection.

If you have questions about your homestead rights or some other property interest, talk to an experienced Palatine, Illinois estate planning attorney today. Our firm helps clients in many northwest suburban towns including Barrington, Long Grove, and Arlington Heights.

About the Author: Attorney Jay Andrew is a founding partner of Drost, Gilbert, Andrew & Apicella, LLC. He is a graduate of the University of Dayton School of Law and has been practicing in estate planning, probate, trust administration, real estate law, residential/ commercial leasing, contracts, and civil litigation. Since 2005, Jay has been a Chair of the Mock Trial Committee for the Annual Northwest Suburban Bar Association High School Mock Trial Invitation which serves over 240 local Illinois students each year.

Do Not Resuscitate Orders: What You Need to Know

Web Admin - Thursday, May 29, 2014

illinois dnr estate planning attorneyAdvances in medical science and technology have made it possible to revive patients after their heart or lungs have stopped working, often known as heroic measures. One of the most common ways of doing this is via simple mouth to mouth resuscitation or chest compressions. Doctors may also use an electric shock to restart the heart, or they may insert a breathing tube down a person’s throat to open the airway. Additionally, drugs like epinephrine may help restart a person’s heart in the event that it stops. The availability of technologies like these though has led to the proliferation of Do Not Resuscitate orders (“DNR”).

What Is a DNR?

A DNR is a type of “advance healthcare directive.” These are documents that people fill out prior to serious illness or injury that affect the type of care a person will receive. The DNR is a specific advance directive that instructs doctors not to perform heroic measures to resuscitate the person.

DNRs apply only to the narrow issue of resuscitation, so it is important not to confuse it with the two other common types of advance directives: living wills and healthcare powers of attorney. Living wills are a different type of advance directive that have broader applications. Living wills allow a person to record their feelings on a variety of life sustaining treatments like the use of feeding tubes and respirators.

Healthcare powers of attorney transfer the authority to make healthcare decisions to another person in the event that they are unable to make healthcare decisions for themselves. Ordinarily, this document will matter most in situations where a person’s condition is not serious enough to implicate the instructions in a living will, but when they are unable to speak.  

DNR orders are important medical documents that can have profound consequences on a person’s quality of life. Therefore, people should understand the different considerations that can affect whether to institute a DNR.

Elements to Consider

There are two important elements someone should consider when thinking about implementing a DNR: their current quality of life and the effectiveness of resuscitation. With regard to quality of life, resuscitation is often necessary because of ongoing medical problems that may or may not ever improve. These health issues can have a serious effect on a person’s quality of life and may even remove the desire to be resuscitated in the event of death. In fact, a survey of doctors revealed that, knowing the quality of life many resuscitated patients have, 88.3 percent would choose to implement a DNR. Part of that is likely because of the second concern, the effectiveness of resuscitation.

While CPR and other measures can often bring people back to life, it is not a perfect tool. Many CPR attempts result in broken ribs, and often, even though the person survives, the experience leaves them with neurological damage. While many people choose to forego DNRs, it is a very personal decision that should only be made after understanding all of the facts involved.

If you are considering implementing a DNR or another advance directive, seek the advice of an Illinois estate planning lawyer today. Our skilled attorneys help clients make these difficult decisions in towns across the northwest suburbs including Inverness, Long Grove, and South Barrington.

About the Author: Attorney Jay Andrew is a founding partner of Drost, Gilbert, Andrew & Apicella, LLC. He is a graduate of the University of Dayton School of Law and has been practicing in estate planning, probate, trust administration, real estate law, residential/commercial leasing, contracts, and civil litigation. Since 2005, Jay has been a Chair of the Mock Trial Committee for the Annual Northwest Suburban Bar Association High School Mock Trial Invitation which serves over 240 local Illinois students each year.

5 Benefits to Using an Institutional Trustee

Web Admin - Tuesday, April 08, 2014

illinois trusts and estate planning attorneyTrusts are versatile, useful legal instruments that allow the grantor (the person who sets up the trust) to set aside certain money or other assets for the use of another person (the beneficiary). However, the beneficiary does not have direct access to the assets. Instead, the trust is managed by a trustee whose job it is to control the assets and use them in the beneficiary’s best interest. This makes choosing the trustee one of the most important parts of setting up a trust.

Although most individuals can serve as a trustee, Illinois law also allows for the use of an “institutional trustee.” Institutional trustees are companies, often banks, who professionally manage the trust’s assets. These companies usually do charge a fee for the services, but the companies come with several benefits:

  • - They are skilled at managing trusts;
  • - They have the ability to handle complex paperwork and recordkeeping;
  • - They provide continuity to the management of the trust;
  • - They operate free of bias; and
  • - They are regulated to prevent fraud.

Reasons to Use an Institutional Trustee

  1. 1. Experienced Administrators: Institutional trustees have experience managing trusts. This allows them to easily navigate the legal requirements for trustees. Furthermore, many trustees are responsible for investing the trust’s assets. Banks and other institutional trustees are often professional investors who will be able to handle the task better than friends or family.

  1. 2. Strong Recordkeeping: Trusts also have fairly extensive recordkeeping requirements to prevent fraud on the part of the trustee. Institutional trustees have the infrastructure in place to make sure that important documents, like tax returns, are filed on time and do not get misplaced. Furthermore, the use of an institutional trustee prevents this complex work from being pushed onto a friend or family member.

  1. 3. Management Continuity: The corporate nature of institutional trustees also allows for continuity in the trust’s management. Trusts can last for decades and decades. An individual trustee may not be physically or mentally capable of managing a trust for its entire duration. Conversely, institutional trustees have the ability to smoothly transfer trust administration from one employee to the next, allowing for steady management of the assets.

  1. 4. Unbiased Distribution: Additionally, institutional trustees can eliminate the possibility of bias that might exist with trustees who are friends or family. The company would not have any prior history with particular beneficiaries that might interfere with the fair and evenhanded use of the trust’s assets.

  1. 5. Fraud Protection: Finally, institutional trustees have fraud prevention mechanisms in place. Although everyone would like to think that their friends or family members are above reproach, cases of theft on the part of the trustee do happen. Many institutional trustees are subject to government regulation and auditing requirements that can reduce the risk of fraud on their parts.

If you are interested in setting up a trust, consult with an Illinois estate planning lawyer to tailor one to your specific situation. Our attorneys lend their experience to clients across the northwest suburban area, including in Long Grove, Riverwoods, and Kenilworth.

About the Author: Attorney Jay Andrew is a founding partner of Drost, Gilbert, Andrew & Apicella, LLC. He is a graduate of the University of Dayton School of Law and has been practicing in estate planning, probate, trust administration, real estate law, residential/commercial leasing, contracts, and civil litigation. Since 2005, Jay has been a Chair of the Mock Trial Committee for the Annual Northwest Suburban Bar Association High School Mock Trial Invitation which serves over 240 local Illinois students each year.


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