Statehouse Review for the week of May 1

ISBA Director of Legislative Affairs Jim Covington reviews legislation in Springfield of interest to ISBA members. In this episode he covers Small Estate Affidavit (Senate Bill 2985), Service of process (Senate Bill 3286), Guardianship (Senate Bill 1046), Health Care Power of Attorney (Senate Bill 3228) and Presumptively void transfers (Senate Bill 1048). More information on each bill is available below.

Small Estate Affidavit. Senate Bill 2985 (Bivins, R-Dixon; Demmer, R-Dixon) expands the Small Estate Affidavit (SEA) statute to include much more detailed information about the known debts of the decedent. The current form specifies only “funeral expenses” with a generic reference to “unpaid claimant or contested claim against the decedent.” Senate Bill 2985 clarifies that all of the decedent’s known unpaid debts must be listed and creates classes of debts similar to the classification of creditors in the Claims Against Estate Article in the Probate Code. Senate Bill 2985 also requires the affiant to sign under a notary public to aid in the enforcement of the civil and criminal penalties for misusing a SEA and syncs up the SEA and the Safety Deposit Act as well.

(1) Includes in the form an acknowledgement that these claims must be paid in this order and pro rata by class before any distribution to any heir or legatee.

(2) Makes clear the relationship of the affiant to the decedent.

(3) Makes another acknowledgement that the claims must be paid before any distribution to any heir or legatee and agrees to indemnify creditors of the estate, the heirs and legatees, and anyone else relying on the SEA who incurs any loss because of any act or omission by the affiant. Indemnification will also include reasonable attorney’s fees and the expenses of recovery.

(4) Any person, corporation, or financial entity that acts in good faith in reliance on a SEA that is substantially in compliance with this Act is fully protected.

(5) Mimics the probate practice that allows distributions under a SEA substantially in the statutory form may be made to the affiant, if so specified in the distribution paragraph, even there are known, unpaid debts.

(6) It has a prospective effective date that the proposal will apply only to a decedent whose date of death is on or after the bill becomes law.

Senate Bill 2985 has passed the Senate and is on second reading in the House.

Service of process. Senate Bill 3286 (Jacobs, D-Moline; Verschoore, D-Rock Island) amends the Code of Civil Procedure to require an employee of a “gated residential community” to grant entry into the community to an authorized process server who is attempting to serve process on a defendant or witness who resides within or is known to be within the community. This access would include common areas and common elements. The term “gated residential community” includes condominium associations, housing cooperatives, or private communities. Passed the Senate and is on second reading in the House.

Guardianship. Senate Bill 1046 (Silverstein, D-Chicago) requires the state guardian to provide a training program that outlines the duties and responsibilities of guardians appointed under the Probate Act. A guardian must take and complete this training program or another approved by the court before he or she can act as guardian. It exempts public guardians, state guardians, attorneys currently authorized to practice law, and persons were certified as National Certified Guardians by the Center for Guardianship Certification. It is pending in the Senate.

Health Care Power of Attorney. Senate Bill 3228 (Haine, D-Alton; Williams, D-Chicago) rewrites the form for a health care power of attorney. Specifically, Senate Bill 3228 amends current law as follows:

(1) Section 4-4 definition is changed to –

• Add a definition of “Health care agent.”  
• Delete subsections (f), (g) and (h) as defined terms because the terms are being deleted from the form itself. Those subsections define “incurable or irreversible condition,” “permanent unconsciousness,” and “terminal condition.”

(2) Section 4-5.1 Limitations on who may witness healthcare agencies is changed to –

• Clarify a witness must be at least 18 years of age.
• Clarify that non-owner chaplains, social workers and others may be witnesses.  
 
(3) Section 4-10 Statutory short-form power of attorney for healthcare is changed to –

• Replacing current notice with a new notice styled more in the FAQ format.  
• Replacing current form with a new form.

(4) Section 4-12, the savings clause, provides that Senate Bill 3228 doesn’t invalidate existing powers of attorney for health care.

(5) Senate Bill 3228 authorizes principals to use other forms instead of using the new statutory one as long as they comply with Illinois law.

Senate Bill 3228 has passed the Senate and now in the House scheduled for a hearing next week in House Judiciary Committee.

Presumptively void transfers. Senate Bill 1048 (Harmon, D-Oak Park) creates a in civil actions a “presumptively void transfer” in the Probate Act that applies to “caregivers.” A caregiver is defined as anyone who has assumed responsibility for all or a portion of the care of another person who needs assistance with daily living activities. A caregiver doesn’t include the spouse, child, grandchild, sibling, or parent of the person receiving assistance.

It works as follows. In any civil action in which a “transfer instrument” transfers property in excess of $20,000 to a caregiver or a caregiver’s spouse, cohabitant, child, or employee a rebuttable presumption is created that this transfer is void.  

There are three exceptions to this rebuttable presumption. (1) By a preponderance of evidence that the transferee share under the transfer instrument is not greater than the share of the transferee was entitled to under the transferor’s testamentary plan in effect before the transferee became a caregiver. (2) By clear and convincing evidence that the transfer was not the product of fraud, duress, or undue influence. But this determination may not be based solely upon the testimony of the caregiver. (3) By a preponderance of evidence that the transfer instrument was reviewed by an “independent attorney” who signs and delivers to the transferor an original certificate of that review in the new statutory form.

If the caregiver attempts and fails to overcome the presumption under this new law, the caregiver must bear the cost of the proceedings, including without limitation, reasonable attorney’s fees. It adds to the definition of a “disabled person” in the Probate Act to include be someone who is unable to resist fraud or undue influence because of mental deterioration or physical incapacity or mental illness or developmental disability.

Senate Bill 1048 is pending in the Senate.