Episode 3: October 8, 2024 | Cornered: Kevin Lichtenberg Discusses Wills, Trusts, and More

Show Notes

• 0:32 - Episode introduction - Kevin Licthenberg
• 2:19 - How do I know if I need a power of attorney?
• 6:03 - What is the role of guardianships?
• 9:36 - Do I need both a will and a trust?
• 12:29 - Wrapping up -- Thanks, Kevin!

Transcript

00:00:01

Oh, you're an attorney. I have a friend. Who was.

00:00:03

I've been meaning to update my will, but I just bought a new house.

00:00:06

I want to start a business.

00:00:06

So I was wondering, and I think we have.

00:00:08

My brother was fired.

00:00:09

Me, my friend, got divorced awhile back. I just don't understand how her.

00:00:14

You've been there at a social function, meeting friends of friends. Word gets out that you're an attorney, and suddenly your night is filled with party goers.

00:00:22

Asking you quote unquote, simple legal questions, the questions are seldom in your area. Some of the stuff you haven't thought about since law school, you're being cornered out of.

00:00:32

Court in the cornered out of court podcast from IICLE, you'll hear from fellow attorneys about the questions they get and the responses they give to escape being cornered. Powers of attorney Guardianships Wills trusts and more provide much needed Peace of Mind and safeguards.

00:00:52

Their families, in a variety of situations because of.

00:00:55

That people have.

00:00:56

A lot of questions about what is required, what will work best for them, and who they should turn to for answers.

00:01:02

This week, we corner Kevin Lichtenberg for some much needed guidance. Mr. Lichtenberg of HeflerLichtenberg, will be presenting at the Elder Law Short course in Chicago October 28th through the 29th. Stay tuned for an exclusive registration discount at the end of this episode, but first, Mr. Lichtenberg will introduce himself and discuss some essentials of estate planning.

00:01:24

My name is Kevin Lichtenberg. I'm an attorney in Chicago, one of the founding partners of our firm, have Flo Lichtenberg. We practice primarily in the areas of guardianship for adults with disabilities, minors, estates. We do some minor guardianship of the person. If there's parents that are not able to do it.

00:01:45

But primarily in the the estate side for minors and then elder law generally for issues that are outside of court, we practice in the collar counties of Cook County, primarily in Cook County because of the volume, but also.

00:02:00

So in the surrounding counties, I'm a 2010 graduate of Loyola Chicago School of Law. I'm on the Board of Governors there, and I've been doing this area of law since I graduated law school, and I love it. It is busy, busy.

00:02:19

Question #1 how do I know if I need a power of attorney?

00:02:23

It's not required by law. Statutory required that everybody has a power of attorney, but it's recommended, right? It's advisable the 1990 federal it's I think it's a patient Self Determination Act required that all patients in hospitals were at least afforded the opportunity to execute.

00:02:43

Powers of attorney? I think the thought was that you increased the number of people that engaged and entered into it states, including the state of Illinois, have statutory powers of attorney, publicly available powers of attorney.

00:02:57

And what I mean by statutory is that the law provides the exact language, a template, so to speak, for power of attorney documents, a state planning attorneys might not be happy with me saying this, but I'll come back and give a plug for estate planning attorneys at the end of this. Is that statute or powers of attorney.

00:03:18

Are publicly available. 1 does not.

00:03:20

Need an attorney to enter into?

00:03:22

Them there's a power of attorney for healthcare. It's a 5 page Doc. No, I think it's 6 pages that's available as a PDF through the state of Illinois. That is a statutory part of attorney for health care that is downloadable. All it requires is, is a witness, disinterested witness. So not or not somebody that's being named as an agent.

00:03:44

Etcetera. And then there's a power of attorney for property. I'm not.

00:03:47

A huge fan of.

00:03:48

That.

00:03:49

Term.

00:03:50

People are think well, I don't need that I.

00:03:51

Don't have property.

00:03:53

It's power attorney for finance. Even if you have one, has $100 in the bank account. You should.

00:03:59

Have a power return for property.

00:04:01

To help somebody manage your financial finances, your bills to delegate the authority to somebody.

00:04:08

To help apply for benefits etc.

00:04:12

So does one need? Yes, it's advisable. I'm married. There are certain person that's that's married in the state of Illinois. There are statutes that allow for the spouse to consent, but those are limited. There's a healthcare surrogate act. There has to be certain bonds ticked.

00:04:32

For medical emergencies.

00:04:35

So there are provisions for spouse, but just so long being married, doesn't it? It's not the, you know, the waving of the magic wand, the silver bullet. The reason I brought up that I'm married and I have a spouse. I have family that's around, but I have powers of attorney because it's a way for me to memorialize.

00:04:55

What my wishes would be if I became incapacitated and who I would want to make those decisions.

00:05:01

It's a long, roundabout way to say do I need? Yes, everybody over the age of 18 should and I also want to make a comment that it is.

00:05:10

Especially prevalent in a large metropolis, areas like Chicago, but throughout the state of Illinois, individuals that are living alone and individuals of the LGBTQ population that maybe do not have a relationship with family that you know, hospitals and other providers would look to to give consents.

00:05:30

Well, maybe that relationship's not there. So it is helpful to have powers of attorney in place, and they are statutorily.

00:05:40

Available. They're free. The one thing I just want to make a quick comment about the power of attorney for property is it requires a witness and a notary and they cannot be the same individual. Sometimes that's a bit of a hurdle, but it's well worth its weight in spades.

00:05:55

To get the notary, and those are usually available at a bank branch or a currency exchange. I call the bank branch.

00:06:01

Ahead of time.

00:06:03

Question #2 what is the role of guardianships?

00:06:08

There's been some, I think, some well welcome scrutiny into guardianship, many that are listening to this may be familiar with the Britney Spears documentary I think about when it all started about looking into some of the abuses of guardianship. That term started with a New Yorker article handful of years ago. I want to say maybe.

00:06:29

Eight to 10 years ago, that was looking at situations in in this, this, this situation was.

00:06:35

State of Nevada.

00:06:36

Where classic setup was kids were upset that their parent found a new that was widowed and found a new boyfriend or girlfriend and was spending their expected inheritance on this. So there was what's called ex parte. People were going in, they were all allowed to make bad decisions.

00:06:56

Right. But when you have a cognitive impairment that is medically documented, that prevents you from weighing the risks and benefits of making a decision, that's where guardianship court.

00:07:08

Comes in where Guardianship Corp comes in, is to appoint a legal decision maker for somebody's powers of attorney. Does the same thing, but it's done outside of court. So there are two vehicles by which that individuals can make legal decisions.

00:07:24

For an adult guardianship court, a judge appoints a guardian or powers of attorney.

00:07:30

Where the individual named the principal names and agent to make those decisions.

00:07:37

Guardianship courts comes into play is in two situations, broadly, 1, where the person, the principal, never did a power of attorney document, so didn't voluntarily put in place a decision maker and the capacity issue has that ship has sailed.

00:07:56

And they don't know how to. You know what they're signing, who they would want to put in place. A judge has to put a legal decision maker. That's the first bucket. No POA's. The second bucket. That's small.

00:08:08

Color is when POA's are in have been signed. However the named agent and or successor is no longer available. Maybe they predecease, maybe they become incapacitated and the reason I say that.

00:08:22

Is.

00:08:22

A point may have a decision maker by a court is a last resort, right?

00:08:26

Where I see it.

00:08:28

Is, well, somebody did their power of attorney. Their estate plan in 1990, two 1982, 2002 and who they name is no longer available. That was 20 years ago, 30 years ago.

00:08:41

And maybe they're the successor, the backup.

00:08:44

Is also not available, so the paper is not worth the ink. It's even printed on.

00:08:50

What it is helpful is that it maybe states the wishes of the of the principle and I want to be cremated or here's where I'm going to be buried or something like that. So again, to round out the question, what is the role of guardianship court is to appoint a legal decision maker when there is no POA. The POA is not available the the agent.

00:09:10

Under POA is not available or the 3rd and I I don't want to go down a rabbit hole as if there are allegations that the named agent under.

00:09:16

Delay is abusing their authority people. A lot of people say that they are the power of attorney.

00:09:24

They're technically the agent under power of attorney, but colloquially people say I am the power of attorney, the power of attorney is the document itself.

00:09:34

Question #3.

00:09:36

I'm curious about Wills and trusts. Do I need one of those? Do I need both of those? How do?

00:09:41

Right now, so like the power of attorneys up above, it's not statutorily required, of course, but it's advisable. So I would reach out to an individual or two or an attorney that you trust to put in place a state planning documents, a state planning documents, the package so to speak, are the 2 powers of attorney.

00:10:03

Those fall under the umbrella of advanced directives. Think about advanced directives as you're stating, while of sound mind, what you want to happen in advance, right?

00:10:12

Some people know those as living wills. State of Illinois also has a mental health treatment preference declaration that's a little bit of a mouthful, but that falls under that umbrella as well. So it's the two powers of attorney, a trust and a will the will. It can be very short and brief, and a will pours over into a trust.

00:10:31

So that the idea is that then the trust doesn't need to be probated in court, and that takes what, roughly a year to 16 months, sometimes longer. The trust is not just for rich people. A lot of people hear that and they think ohh, I don't need a trust. I don't need that.

00:10:46

It's very smart to do and the state planning attorneys can put forward a plan that includes. I would, and that's again, that's a broad statement, but maybe it's not true for everybody. But I think that it's advisable. It certainly is. It's also the nature of it is one that people think well, I don't need that.

00:11:07

That's for rich people or people are hesitant to talk about their own mortality, right?

00:11:13

And it's an easy thing to kick down the road, but you set it and forget it. Once you do it. For example, my folks did it. They didn't have one, but I was so proud that they did it about seven years ago.

00:11:24

And I know it was difficult for them to think about that, but what's to happen? Who do I want to make decisions if I become ill or?

00:11:31

What's happened with our house? You know, their house. My mom loves to joke that what's going to happen with my dogs. They're a lot. And it also is for young parents.

00:11:41

Custody of their children. Put those in your directives. God forbid something happened to the parent or parents.

00:11:49

If you can.

00:11:50

Put in writing now that would help and it's not something to be Willy nilly and and same goes for powers of attorney. Any advanced directive or say plan, it can be changed. Well, it's. Well, there is capacity. It shouldn't be done on let's say for example a weekly.

00:12:04

Pieces. But things change. Maybe change it in a year and those that do have an estate plan or any in place. I suggest give it a look through and maybe updating it. And don't being afraid. Don't be afraid to ask for an update. So there's a lot of really good estate planning attorneys out there. There are a lot of attorneys out there, but there are a lot of really good estate planning attorneys.

00:12:24

And don't hesitate to ask. I'll be happy to pass on name.

00:12:28

Said that's the way.

00:12:29

To go. Thanks, Kevin. Kevin Lichtenberg of HeflerLichtenberg will be presenting on the essentials of navigating probate court proceedings at the Elder Law Short Course on October 28th and 29th at the Chicago Marriott Southwest. Register now with coupon code ElderLaw10 for a 10% discount

00:12:50

Go to iicle.com/ELSC24 and use coupon code ElderLaw10 for 10% off the registration price.

This discount can only be applied to the elder Law Short course 2024 and does not apply to any other IICLE program, publication, product or service.

00:13:09

Discount may not be combined with any other discount subscription rate, special rate, special pricing, or special offer.

00:13:16

If you have an idea for a topic you would like to hear discussed on the cornered out of court podcast, we welcome your suggestions by e-mail. Our address is info.thatsinfo@iicle.com IICLE is a 501(c)3 not-for-profit based in Springfield, IL. We produce a wide range of practice guidance for Illinois attorneys.

00:13:37

And other legal professionals in all areas of the law with the generous contributions of time and expertise from volunteer attorneys, judges and other legal professionals.

00:13:45

If you are interested in our many authorship and speaking opportunities, please give us a call at 217-787-2080 or sign up for the IICLE volunteer network at iicle.com/volunteer.

00:14:00

Thank you for joining us for another edition of cornered out of court, brought to you by the Illinois Institute for Continuing Legal Education.