Legal issues can be complex and even confusing. And sometimes, life circumstances put you in situations where you have to navigate through legal paperwork and proceedings that you don’t fully understand.

Below you will find information about these issues to help you understand them. The information you obtain here is not, nor is it intended to be, legal advice.  You should consult an attorney for individual advice regarding your own situation.

Estate Planning
Medicaid Planning/Nursing Home Planning
Elder Law
Wills
Trusts
Powers of Attorney
Probate
Guardianship
Real Estate

Estate Planning
By definition, estate planning is a process designed to help you manage and preserve your assets while you are alive, and to conserve and control their distribution after your death according to your goals and objectives. But what estate planning means to you specifically depends on who you are. Your age, health, wealth, lifestyle, life stage, goals, and many other factors determine your particular estate planning needs.

For example, you may have a modest estate and may be concerned only that certain people receive particular things. Or, you may have a large estate, and minimizing or eliminating potential estate taxes may be your foremost goal.  Tools for estate planning may include, wills, trusts and powers of attorney for healthcare and property. 

Medicaid Planning/Nursing Home Planning
You worked hard all of your life to pay off your mortgage and build up a savings for retirement. You expect to live off your savings in the comfort of your own home, and you plan to leave your hard earned assets to your kids at your death.  Suddenly, the unthinkable happens--you become ill and are forced to spend the rest of your life in a nursing home. What will happen to your house and your other assets?

Unfortunately, many nursing home residents end up spending all of their assets to pay for their nursing home care. But it doesn't have to be that way. The best time to plan for the possibility of nursing home care is when you are still healthy. By doing so, you may be able have your long-term care costs paid for and also protect your assets for your loved ones. This planning is commonly referred to as Medicaid planning.  Even if you have not planned ahead, and depending on the individual circumstances, a person who must enter a nursing home may be able to still protect most, if not all, of their assets.

An attorney experienced in Medicaid planning can not only assist with the Medicaid application and hearing, but also develop strategies to rearrange finances and legally shelter assets so that they do not have to be spent to pay for your nursing home care. These strategies, and the Medicaid rules themselves, can be complicated, and implementing a plan has become even more difficult since the passage of the Federal Deficit Reduction Act of 2005 which became Federal law on February 8, 2006.

Elder Law
Elder Law involves the legal issues that arise as a consequence of the aging process.  Elder law is not defined by a single area of the law.  Instead, elder law attorneys assist clients with a variety of issues, including: Medicaid and asset protection planning, Medicare, social security, disability planning, pensions, retirement plans, financial and health care decision making through the use of powers of attorney, elder abuse and financial exploitation, end-of-life decision making through the use of living wills, estate planning, wills, trusts and probate.

Most elder law attorneys do not concentrate in every one of these areas. Therefore, when an attorney says he or she practices Elder Law, find out which of these matters he or she handles. You will want to hire the attorney who regularly handles matters in the area of concern in your particular case, and who will know enough about the other fields to question whether the action being taken might be affected by laws in any of the other areas of law on the list. For example, if you are going to rewrite your will and your spouse is ill, the attorney needs to know enough about Medicaid to know whether it is an issue with regard to your spouse's inheritance.

Unfortunately, there are attorneys, financial planners, insurance agents, accountants, and others who hold themselves out as having knowledge about elder law but who actually have little or no experience in these practice areas. For this reason, you will want to be particularly careful to hire an attorney who you know and trust. 

 
Wills
There are many tools that an individual can use to determine what happens to your money, home, and other property after you die, but a will is probably the most common and most vital. Even if you're young or your estate is modest, you should always have a legally valid and will that is up-to-date. This is especially important if you have minor children because your will allows you to name a guardian for them.

Probably the greatest advantage of a will is that it allows you to avoid intestacy. That is, a will allows you to choose who will get your property rather than leaving it up to Illinois law. Illinois intestate succession law, for all practical purposes, provides a will for you if you die without one. In general, this "intestate will" distributes your property to your closest blood relatives in proportions dictated by law. However, the Illinois rules may not be what you would have wanted. Having a will also has other advantages, which include the possibility that your estate will owe less taxes and incur less expenses than it would if you had not created a valid will.

Trusts
A trust is an agreement that determines how a person's property is to be managed and distributed during his or her lifetime and also upon death.  A “revocable living trust” or “inter-vivos trust” normally involves three parties:

• The Grantor - This is the person who creates the trust, and usually the only person who provides funding for the trust. More than one person can be the grantor of a trust, such as when a husband and wife join together to create a trust.  The grantor can also be referred to as the “Settlor”.
• The Trustee - This is the person who holds title to the trust property and manages it according to the terms of the trust. The grantor often serves as trustee during his or her lifetime, and another person or a corporate trust company is named to serve as successor trustee after the grantor's death or in the event the grantor is unable to continue serving for any reason.
• The Beneficiary - This is the person or persons who will receive the income or principal from the trust. This can be the grantor (and the grantor's spouse) during his or her lifetime and the grantor's children (or anyone else the grantor chooses to name) after the grantor's death.

A trust is classified as a "living" trust when it is established during the grantor's lifetime and as a "revocable" trust when the grantor has reserved the right to amend or revoke the trust during his or her lifetime.  A “testamentary trust” set up in a person’s last will and testament begins upon the testator’s (maker of the will) death.  

Powers of Attorney
A Power of Attorney (POA) is a written document that authorizes someone else to do something on your behalf.  When you give someone power of attorney, you are not giving up the right to manage your own affairs. Instead, what you are saying is that if a situation arises when you cannot manage your affairs (i.e. due to an accident or illness), this is the person you want to help.

By signing powers of attorney, you are naming the person of your choosing to act on your behalf, not someone who would otherwise be appointed by statute or the court. The Illinois General Assembly has created "standard" POA forms. These forms are called the Illinois Statutory Short Form Power of Attorney for Property and the Illinois Statutory Short Form Power of Attorney for Health Care. These forms are also known as a Property POA and the Health Care POA.

Although these forms are “standard,” there are several important additional provisions that you may need but are not included in the standard forms.  POAs are very useful documents if you ever become disabled. You will have a trusted family member or someone else that you can rely on (spouse, children, close friend, etc.),  to make decisions for you. POAs can keep things running smoothly during a time that may be very stressful and emotional for your family.

Probate
When someone dies, there is a procedure in place that helps ensure the orderly distribution of his or her assets to the beneficiaries as designated by the Last Will and Testament, or the legal heirs in the event that no will exists.  The procedure is called probate, and it is a process whereby the court appoints someone to manage the estate of the decedent.  This person may be an "executor" if nominated by the decedent in his or her will or an “administrator” if the decedent died without leaving a will.

Each executor or administrator must be approved and officially appointed by the court.  Generally, if the decedent left a will, the person in possession of the will has the responsibility to file it with the circuit clerk within 30 days of death. The person nominated as executor then has the responsibility to ask the court to probate the will. 

The Probate Judge will do many things:

• Appoint an Administrator/Executor of the estate
• Require and approve certain court documents
• Ensure that the decedent’s assets (e.g. real estate, money and personal property) are collected and distributed as required by either the Will or Illinois law
• Ensure that all the estate’s expenses and debts are accounted for
• Ensure that estate creditors are given notice and time to file a claim against the estate
• Ensure that all applicable taxes are filed and paid; and,
• Ensure that the remaining assets are given to those persons entitled to receive them under the will or in accordance with Illinois law.

Guardianship

A Guardianship may be necessary over a disabled adult or over a minor under the age of 18.

Guardianship of a Disabled Adult:  When a person can no longer safely or responsibly handle their personal and/or financial affairs, a court may appoint a guardian. The guardian will have the legal authority to make decisions and take actions necessary to care for and protect the disabled person.

The court may appoint a guardian of the person and/or a guardian of the estate. Often, the same person is appointed both guardian of the person and of the estate.  A guardian of the person refers to the guardian who makes decisions concerning the personal and physical care of the disabled person, including health care decisions and living arrangements.  A guardian of the estate refers to the guardian who handles the money, property, bill paying, and other financial matters for the disabled person. 

Guardianship of a Minor:  Children under age 18 live with relatives for many reasons.  These reasons may include the illness or death of a parent, or because a parent cannot care for the children due to abuse or neglect, addiction, or other problems.  If a situation arises where a minor has no parent capable of caring for them, an interested party can petition a court for guardianship of the minor.

Illinois law sets out the rules you need to follow to become a minor's guardian. First, you must ask a court to become the child's guardian. Next, you must either obtain the consent of both natural parents, or, if both natural parents do not consent, then you must still provide them with notice of your intention to seek guardianship.  Both or either parent can come to court and object to you becoming the child's guardian.  If one of the parents objects, you’ll have to give reasons to show why the parent is not "willing and able" to take care of their child. However, if neither parent objects, and you show good reason to be appointed guardian, a judge will probably name you as guardian over the minor.

If you become the minor's guardian, you step into the place of the parents and are in charge of the child’s upbringing, healthcare and education.  The guardian’s legal responsibility terminates once the child turns 18, or until somebody petitions the court and convinces the judge to agree to terminate the guardianship, whichever occurs first.

Real Estate
The sale or purchase of a home may very well be the largest financial transaction of your life. To protect that investment, you need to work with an attorney who is knowledgeable in real estate law.  Having your real estate transaction handled properly to prevent problems makes much more sense than trying to resolve a problem after it arises.

A real estate attorney will provide you with an understanding of the steps involved in a real estate transaction. The attorney should:

• Prepare the real estate contract and disclosures required when residential real estate is involved
• Work with and coordinate the transaction with the bank
• Order and review the title insurance
• Explain taxation issues
• Prepare deed and real estate transfer tax declaration
• Attend the closing

Your attorney can also explain a contract for deed and prepare the contract and related documents.  Finally, your attorney can provide advice and representation for rental issues between a landlord and tenant.