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Archive | February, 2009

When the Trustee is not Trustworthy: Remedies for the Trust Beneficiary

Before my mother passed away, she established a living trust and named my sister as Trustee.  My sister, my two brothers and I are the beneficiaries of this trust.  I recently found out that my sister used my mother’s trust to pay for a cruise for herself and her daughter, and also remodeled her home with my mother’s trust monies.  What can I do?

Naming a Trustee of your Trust is perhaps the most important estate planning decision you make.  Unfortunately, this mother made the wrong decision in naming her daughter as Trustee after her death.  A Trustee has the fiduciary duty to act in good faith, in accordance with the Trust terms and purposes, and to act for the sole interest of the beneficiaries.  Even though the Trustee may herself be a beneficiary of the trust, she is breaching her duties as Trustee by using the trust assets for her personal benefit.

This beneficiary needs to act quickly to prevent the Trustee from continuing to spend the trust assets. If the Trustee/sister spends more trust assets than she is to receive as a beneficiary, it will be difficult to actually recover those trust assets from her.  The beneficiary should engage an attorney to file an emergency action to freeze the trust assets so the Trustee can’t continue to spend them; to remove the Trustee; to force her to account for her actions as trustee; and, ultimately, to pay back the misappropriated funds.  Because the Trustee acted intentionally in using trust assets for her own benefit, the beneficiary may be able to obtain punitive damages – a monetary penalty for breaching her duties to the trust – against the Trustee.

The Trustee will not be allowed to use trust assets to defend herself.  However, because the beneficiary is acting to protect the trust, it is possible that the beneficiary’s attorney’s fees will be paid from the trust assets.

To set up a consulatation to discuss your particular needs, contact the experienced elder law attorneys at Janna Dutton & Associates.

Elder Abuse: What do you do if you suspect it?

It’s difficult when you suspect that an elder you care about is the victim of elder abuse.  While the majority of reported elder abuse concerns financial exploitation, abuse may be physical, emotional, or sexual in nature, or may take the form of neglect.  In addition, some elders simply do not have the capacity or ability to properly care for themselves and may fall victim to self-neglect.

Elder abuse does not discriminate between sex, ethnicity or social status.  Between July 1, 2005 and June 30, 2006, the Illinois Department on Aging received 9,191 reports of elder abuse and, sadly, the majority of abusers were family members of the victim.

What do you do when you suspect that someone you love or care about is the victim of elder abuse or neglect?  If you suspect that someone you know is in immediate or life-threatening danger, first call 9-1-1.  Otherwise, to report suspected abuse, exploitation or neglect of an older person you may make a report to your local police department.

You may also call the Illinois state-wide 24-hour Elder Abuse Hotline at 1-866-800-1409, 1-888-206-1327 (TTY).  Under the authority of the Elder Abuse and Neglect Act (320 ILCS 20/1 et seq.), the Illinois Department on Aging administers the statewide Elder Abuse and Neglect program.  Reports of elder abuse are investigated by elder abuse caseworkers at one of 44 provider agencies around the state.  These case workers are trained and certified by the Department on Aging.  You may also call your local elder abuse provider agency directly.

Anonymous reports are accepted and the identity of the reporter may only be disclosed with written permission of the reporter or by court order.  Under the Illinois Elder Abuse and Neglect Act reporters who act in good faith are immune from civil or criminal liability or professional disciplinary action as a result of the report.

For more information on Elder Abuse or to schedule an appointment to meet with an attorney visit our website or contact us at 312-899-0950.

Am I old enough for an Elder Law attorney?

We often get asked this question by potential new clients when calling to make an appointment for a consultation.   The National Academy of Elder Law Attorneys, Inc., (NAELA) states its goal is to establish “NAELA members as the premier providers of legal advocacy, guidance and services to enhance the lives of people with special needs and people as they age.”

Many attorneys who practice in the broad field of elder law are dedicated to planning for the needs of older adults; however, Elder Law is not simply limited to issues affecting those in their later years of life.  In addition to advising as to wills, trusts and simple estate planning, so much of elder law is concerned with disability law and planning for special needs.  Medicaid planning, guardianship, powers of attorney, living wills, and special needs planning are all essential issues to consider when developing an effective estate plan.

For example, a younger client who has a child with special needs may seek advice about the provision of a special needs trust to ensure that child’s needs are met upon the parent’s death.  Older couples who contemplate the need for nursing home care may consult an elder law attorney for Medicaid planning and asset protection.  An adult child may seek an elder law attorney to represent them in petitioning for the appointment of a guardian for a parent or family member who requires assistance with finances or health care decisions and has not designated an agent under power of attorney.

If you would like to meet with an attorney to discuss your particular needs and concerns visit our website or call 312-899-0950 to make an appointment.