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Spotlight on Trusts & Estates Section Council Member Mary E. Vanek

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THE TRUSTS & ESTATES SECTION COUNCIL has members from throughout the State of Illinois with a variety of professional achievements, skills, and practices. In this newsletter, we continue a prior series of “spotlight” articles that highlights the backgrounds, interests, and experiences of members of the Trusts & Estates Section Council, in a question-and­ answer format, in order to get to know more about them.

Q: What got you into the Trusts and Estates practice?

A: My first job out of law school was with a general practice firm, where I was able to learn about a lot of different areas of practice: including real estate, corporate, and trusts and estates. For some reason, I enjoyed the trusts and estates area the most, and in my second attorney position, I was able to focus on my favorite area of the law.

Q: What is your favorite part of the practice?

A: I enjoy meeting with the clients and getting to know them and help them to achieve their goals, whether that is in the area of estate planning, or administration. A close second is doing research and drafting briefs-I am always learning something new.

Q: What is the most challenging part of the practice?

A: Managing time and managing client expectations. Everything takes longer than you think it will and ends up being more expensive for the client. And of course, there are no guarantees in litigation. I tell my clients it’s like Thunderdom-two go in and one comes out, and there is no guarantee you will be the one that comes out.

Q: What is the most interesting part of the practice?

A: To quote the late Sen. Everett Dirksen, I like to “unscrew the inscrutable.” I like to take on messy, complicated situations and find workable solutions. For example, we have had administrations where both grandparents’ and parents’ estates were never administered and now the children need to sell a house or transfer assets and we have had to do multiple probate administrations. In another situation, we had two deceased parents’ trusts that had no living trustees, and yet the trust had assets that needed to be distributed. We were able to open a probate to get a successor trustee appointed nd finally get the trust administered. I also enjoy doing post­ mortem planning and “fixing” problems with trusts through the use of non-judicial settlement agreements, disclaimers, and decanting.

Q: What do you like to do when you are not administering trusts/estates?

A: I like to read, golf, walk/hike in the great outdoors, travel, and knit, crochet, and needlepoint.

Please stay tuned for the next Spotlight article when we will feature another member of the Trusts & Estates Section Council.

Attorneys Mary E. Vanek and Talia M. Shambee Achieve Appellate Court Victory

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Matlin Law Group attorneys, Mary E. Vanek and Talia M. Shambee, recently prevailed in the Illinois Appellate Court on behalf of the firm’s clients, adult children seeking guardianship of their mother.

The Appellate Court agreed with our argument that the respondent’s motion to dismiss the petition for guardianship should be remanded for further proceedings because (1) the lack of a physician’s report finding that the subject of the petition was disabled did not warrant dismissal pursuant to section 2-615, (2) the record was insufficient to conduct the burden-shifting and rebuttal analysis that section 2-619(a)(9) requires; and (3) the court violated petitioner’s right to procedural due process by dismissing the petition at a status hearing 16 days before the petitioners’ response to the motion was due. See, 2023 IL App (1st) 122160-U. 

Please email Mary E. Vanek or Talia M. Shambee. Or call 1-847-770-6600 to schedule a meeting with Mary.

Mary E. Vanek
Mary E. Vanek
Talia M. Shambee Attorney At Law
Talia M. Shambee

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What Is Mental Capacity, and Why Does It Matter?

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What is mental capacity in a legal sense? Having the cognitive ability to enter a contract is a crucial legal principle. All parties entering into a contract must have the mental capability to do so. Otherwise, the agreement can be considered void and then canceled.

Mom is 78 years old, living alone after the death of Dad. She was recently diagnosed with the early stages of Alzheimer’s. Mom doesn’t have a will or powers of attorney for health care or property, and you have heard that these are important. You have also heard that if Mom lacks mental capacity, she can’t sign these crucial estate planning documents.

“Capacity” is not a one-size-fits-all concept. The answer depends upon what decisions Mom needs to make and what type of documents she needs to sign. For example, the legal standard for capacity is lower for executing a power of attorney for health care than for signing a contract or a deed.

WHY DOES MENTAL CAPACITY MATTER?

If Mom lacks the capacity to sign a will, then any will she signs during her incapacity will be subject to legal challenge. For example, a contested estate matter could revolve around the issue of whether a person lacked the capacity to favor one child over another or to give her estate to her hairdresser.

If Mom lacks even the capacity to sign a power of attorney for health care, then you may have no option other than having her declared a disabled person and appointing a guardian to act on her behalf.

Let’s discuss how mental capacity can affect various legal decisions.

MEDICAL DECISIONS

Every adult in Illinois is presumed to have the capacity to make their own health care decisions, assuming they are in a conscious state. A diagnosis of early Alzheimer’s will not necessarily overcome this presumption, but a diagnosis of advanced dementia or Alzheimer’s could.

POWERS OF ATTORNEY

The level of capacity required to execute a durable power of attorney has not been determined in Illinois. However, the standard of capacity for powers of attorney for health care would most likely be similar to those outlined above under “medical decisions.” In contrast, the standard for powers of attorney for property would most likely fall between “testamentary capacity” and “contracts and deeds.”

TESTAMENTARY CAPACITY (WILLS)

The standard for testamentary capacity is less exacting than the ability to transact ordinary business. Mom may not be able to balance her checkbook or pay her bills on time, but if she can meet the following standards, she is competent to make her will:

  1. The ability to know the nature and extent of her assets;
  2. The ability to know the natural objects of her bounty (typically close family, friends and charities; and
  3. The ability to make a disposition of his property in accordance with some plan formed in her mind.

It is not necessary that the person actually knows these things. It is only necessary that she has the mental ability to know them.

TRUSTS

Neither Illinois statutes nor Illinois case law clearly establish the level of capacity needed to execute a trust. The key is determining whether the trust in question is more like a will or a contract. An irrevocable trust (such as a special needs or life insurance trust) is more like a contract or deed than a will because it disposes of the person’s property immediately and forever.

A trust that delays making a gift to another person until after the client dies is more like a will and requires a level of capacity similar to that required to make one. An irrevocable trust requires a level of capacity similar to that of a contract, as discussed below.

CONTRACTS AND DEEDS

The requirements to execute a contract or deed are the highest on the capacity spectrum. The person must have sufficient mind and memory to comprehend the nature and effect of her actions, exercise her own will, cope with her adversaries, and protect her interests.

GUARDIANSHIP

Guardianship requires filing a petition with the court to have a guardian appointed to handle the day-to-day financial and/or health decisions of a disabled person who is not able to manage her affairs fully. Guardianship can be avoided if the incapacitated person has signed valid powers of attorney for health care and property. In addition, individuals who have been declared to be disabled may still have testamentary capacity that may be exercised with court approval.

CONCLUSION

If you have a family member whose capacity is diminishing, don’t delay taking action to get their affairs in order. Since capacity usually diminishes over time, it is essential to take care of these issues as early as possible before capacity is lost. Have a capacity assessment made by a qualified physician, preferably a geriatric psychiatrist or geriatrician, in the case of an elderly person.

If you need help handling a loved one’s affairs or putting estate planning documents in place,
contact Matlin Law Group at 1-847-770-6600 to schedule an appointment today.

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Power of Attorney for Health Care and HIPAA Authorization for Clients with College-Bound Children

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While many parents are covering dependent insurance of their adult children until the age of 26, many of these parents are unaware that they have no access to that adult child’s medical records and/or no one has been appointed agent under power of attorney for healthcare for the adult child.

Imagine: Your daughter is in college, a thousand miles away. You pray that she is safe in her new environment, but if she is hurt you can find yourself in a nightmare world. You get a call from a hospital: “She’s here, in stable condition.”

You ask, “What happened? What’s happening?”

The worker at the other end of the phone may feel legally restricted in what information she can give you without conflicting with HIPAA regulations, so you receive no clear response and are denied basic information. She believes that she is honoring your daughter’s federal right to privacy under HIPAA and minimizing her potential liability; but her “take it up with our legal department” response leaves you in a lurch.

HIPAA (Health Information Portability and Accountability Act) authorizations and Powers of Attorney for Health Care (POAHC) are examples of estate-planning tools that are valuable to people of all ages and means. Every competent person age 18 and over should have them. HIPAA authorizations allow access to your adult child’s health information to whomever your adult child chooses.

POAHCs provide for the appointment of an agent who can make the personal and medical decisions on your behalf of your adult child, should they become incapacitated. It is a type of “advance directive” that helps to avoid a guardianship over their person, keeping your family out of court, and provides a forum for your adult child to articulate end-of-life philosophies, addresses organ donation issues and disposition of remains.

Think of a HIPAA Authorization as your loved one’s answer to the voice at the medical emergency end of the phone saying, “Sorry, I’m not authorized to discuss her condition with you — if you have a problem with this, take it up with our lawyers.” The penalties for health workers (physicians, nurses, hospital administrators and others) who violate complex HIPAA privacy rules can include fines and jail time.

If you are a new or existing client and your adult child is on their way to college, please have them contact Matlin Law Group at 1-847-770-6600 to schedule an appointment to execute their health care power of attorney, HIPAA authorization, and Living Will.

New Attorney Spotlight

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At Matlin Law Group, we are committed to providing quality legal services to our clients, as well as building on our success and ensuring the longevity of our firm. A talented attorney recently joined our firm. We are pleased to introduce you to Talia M. Shambee.

Please contact Talia to request a free estate planning consultation via Matlin Law Group’s website or feel free to give us a call at 1-847-770-6600.