When you take a trip, you plan for pretty much everything.
If you are also the guardian of an elderly parent, you might consider putting someone else temporarily in charge during your trip. Even if the parent is capable and competent, you don’t want to burden them with this obligation. However, if you’re going to be gone, and contacting you might be difficult at best, it might be best to consider a short-term guardianship just as you would for children.
Setting up short-term guardianships is simple, and you don’t have to go to court. The Illinois Probate Code authorizes use of a short-term guardianship for disable adults, without court approval, if the guardian is unavailable, or cannot handle the guardianship duties.
There can only be one appointment in effect at a time. Short term guardianships can be date-specific, giving you the flexibility to make two separate appointments, if appropriate, during your absence.
Appointments must be in writing, and dated. It needs to set out the specifics of the guardian, the ward, the short-term guardian, and when the short-term guardianship is to be terminated. The
guardian and at least two adult witnesses, not the short-term guardians, must sign the appointment. The short-term guardian must sign it also, but not necessarily at the same time as the guardian and witnesses. The appointment can be for a total of 60 days in any 12 month period.
Schaefer v. Walker Bros. Enterprises, Inc., No. 15-1058 (July 15, 2016) N.D. Ill., E. Div. Affirmed Dist. Ct. did not err in granting defendants-restaurants' motion for summary judgment in actions by plaintiffs-servers in said restaurants alleging that: (1) defendants violated FLSA by failing to give them sufficient information to allow defendants to pay them lower than normal minimum wage or "tip-credit" rate; and (2) defendant's improperly paid tip-credit rate for job duties that did not relate to normal server duties. Record showed that plaintiffs spent, at most, between 10 to 45 minutes per day on non-server duties such as cleaning restaurant and restocking supplies, and relevant Dept. of Labor regulations permitted defendant to pay reduced tip-credit wage for said duties, where said duties represented less than 20 percent of plaintiffs' time and were sufficiently related to their server duties. "
Important Changes Involving Taxes
Tax Season Open:
* Individual income tax filing season opened January 23, 2017.
* Due date to file is Tuesday, April 18, 2017 instead of the traditional due date, April 15, 2017.
* A new law requires the IRS to hold refunds tied to the Earned Income Tax Credit (EITC) and the Additional Child Tax Credit (ACTC) until February 15. Some taxpayers may not have access to refunds until February 27, 2017.
*Taxpayers can check refund status by going online and using the "Where's My Refund?" tool within 24 hours after you e-file your return. FreeFile program, available through the IRS website, is open Friday, January 13.
* Free online fillable forms are available on the IRS website.
Trump Transition Team
* To help combat identity theft and refund fraud, beginning in 2017, taxpayers who self-prepare returns using a software product for the first time may need their Adjusted Gross Income (AGI) amount from their prior-year tax return to verify their identity.
*A potential hiring freeze has occurred due budget slash within the IRS. The transition team does not believe this will impact the upcoming tax season.
An important duty for an executor or trustee is gathering and securing assets after a person’s death. It is essential for the executor or trustee to secure the home as soon as possible, especially upon the death of a surviving spouse of a couple, or in any circumstance where others might have access, such as extended family or health care workers. It’s important for the locks to be changed, and the contents of the home, as well as the home itself, to be secured, prior to things being disposed of as provided in the estate plan.
For some clients, their documents – wills, trusts, powers of attorney – remain sufficient. For others, though, the failure to review and/or update an estate plan, even one prepared recently, may result in otherwise avoidable taxes or family tensions, or even simply missed chances to put their heirs in a better place.
Since August, the estate-planning world has been talking about the Treasury Department’s proposed regulations under Internal Revenue Code Section 2704. For some families, the effects of the regulations’ limits on discounts available in valuing family business could be substantial. Even the most well-informed clients likely need an in-depth discussion to understand how these regulations may affect them, as well as what they might do.
Now, we also have the possibility of an estate tax repeal under the Trump administration. Whatever the outcome, it will impact many estate plans.
There are definite, broad examples of developments that can bring about a need to update an estate plan, such as the birth of children and grandchildren, marriage and divorce, aging parents, as well as changes in relationships and philanthropic concerns.
Ultimately for clients, the best hope really is a team – the attorney who prepares the plan, and the accountant and investment manager who keeps contact with the client after the plan is done. The team needs to recognize each other’s value, and be vigilant that they are complete and that the client has the right people to help.
Illinois is trampling on the U.S. Constitution by excluding “new” political parties from the ballot unless they run a full slate of candidates, a federal judge has ruled. (Read More)
When setting up an estate plan, people plan and know every last detail of what they want, but they often overlook the trustee or executor – fiduciary – and their importance. Potential mistakes including paying off debts immediately without planning ahead for claims that have a higher priority, failing to collect or protect assets, not investing the assets properly, not exercising discretion, and/or failing to make correct filings, like tax returns.
It is also important to consider the family relationships, as it is possible that naming one sibling as a trustee instead of another could drive a wedge between them. When naming a fiduciary you should consider: the importance of integrity, willingness to seek outside expert opinions, organizational skills, good relationship skills, and reasonable intelligence.
Scotts Law, also referred to as the “Move Over” Law, requires drivers to slow down or change lanes when driving by a stopped emergency vehicle. Beginning in 2017 the law also will include any vehicle on the side of the road with hazard lights flashing. If you do not abide by the law, then there is a $100 fine. It is now extra important to be aware of the cars on the shoulder of the road.
The US Citizenship and Immigration Services, or USCIS, has announced the newest version of the Form I-9 is now available and ready for use. It is required for employers to complete and retain a Form I-9 for every new employee. This Form is used for eligibility verification by confirming the employee’s identity and employment authorization in the US. The Form must be completed and signed within three business days of date of hire.
The previous form can be used until January 21, 2017, but as of January 22, 2017, any and all prior versions of the Form I-9 are no longer valid for newly hired employees. If the information is otherwise accurate, the current Forms on file do not need to be updated or redone with the new Form.
According to USCIS, a few positive changes to the new Form include:
The new Illinois law, requiring all hairstylists to be trained in domestic violence support and response, will take effect January 1. Often, hairdressers hear about incidents of domestic violence while chatting with clients. The mandate was passed as an amendment to the Barber, Cosmetology, Hair Braiding and Nail Technology Act of 1985, and aligns with the Professional Beauty Association’s Cut It Out program.
The idea is to help hairdressers deal with disclosures, and to make a difference.
The new law provides that someone licensed under the Act will not be civilly or criminally liable for acting in good faith, or failing to act on the information obtained concerning potential domestic violence or sexual assault.
Beginning in 2016, Medicare will be paying physicians when they have advance care planning
conversations with their patient.
Here are some of President Obama’s proposals in the fiscal 2017 budget, which was released earlier this month:
Necessary coverage for insuring your second home/condo is quite different than that on your primary home.
Your current policy might cover two properties under one policy, but as there are added risks with a second home/condo, a separate policy might be best to obtain the necessary
coverage. Some of these risks might include:
• Long periods of time with the home/condo being unoccupied – without anyone being in them, damage can go unnoticed and unfixed, weather or fire damage may not be responded to, and it could become a target for burglars.
• If your second home/condo is in an isolated location, it could mean that you are further removed from loss prevention services, such as a hydrant, or a fire department.
• If you rent your home/condo to help offset the costs of owning such, your liability to damage or injury may increase.
To secure the right coverage, work with your agent, and be sure to discuss the benefit of raising your personal liability coverage to protect you from any risk to your personal wealth that might come with opening your home/condo to renters and guests
As a homeowner, are you responsible for the damage caused by a tree on your property that hits your neighbor's home or other insured structure, such as a garage or shed? In most cases, the answer is "no."
When such damage occurs to your neighbor's home due to forces outside your control, for example, weather events, your neighbors may have to file a claim with their insurer to receive a reimbursement for the damage fallen branches or a down tree causes.
There is one exception, however. If it's determined that the tree damage stems from your negligence (for example, dead limbs that you refused to cut down, or you chose to trim your tree as a weekend project), then the neighbor's insurer may come after you to recover their loss, a process called subrogation.
You may want to check your policy or speak to your insurance agent to ascertain if your homeowners policy covers your liability in cases of negligence.
Proving what you knew or should have known can be difficult and costly in a court of law. It typically benefits both parties to arrive at a compromise that avoids an expensive legal process.
Numerous reports indicate that in an emergency, the Advanced Medical Directive (health-care power of attorney) is frequently not located. If not, the patient's wishes may not be carried out.
The medical directive is a document directing medical personnel to follow the wishes of someone appointed by the patient. It is tailored to the desires of the patient. Some patients wish their life not to be unreasonably prolonged in certain circumstances. Other patients wish their life to not be terminated prematurely.
If the medical directive can't be located in an emergency, medical personnel, in the alternative, will have no choice but to follow statutes, regulations and their own judgment, instead of the wishes of the patient. For these reasons it's crucial that the medical directive be available in emergency circumstances.
When we execute a medical power of attorney, we provide multiple copies to the client. We expressly direct the client give a copy to: 1) their personal physician, 2) their hospital, and 3) the person they're giving the power to. We also recommend they put a copy in:1) the glove compartment of their car, and 2) any other location they think that will be useful in the event of an emergency. This precaution helps to avoid looking for the document in a medical emergency.
I would recommend you do the same.
In Wright v. Bd. of Trs., State Univs. Ret. Sys., 2014 IL App (4th) 130719, Plaintiff was receiving disability benefits for an on-the-job injury from the State Universities Retirement System of Illinois (SURS). During that same time, Plaintiff also received workers’ compensation benefits. The court held that SURS is to be reimbursed for benefits paid during the time that Plaintiff was also receiving workers’ compensation benefits. Also, the court held that the actual date workers’ compensation benefits were paid is irrelevant.
In Kimble v. The Illinois State Board of Education, 2014 ILL App (1st) 123436 July 18, 2014), the Appellate Court found that Due Process was denied during a tenured teacher’s termination hearing when hearsay statements that the teacher had choked the student were allowed in as evidence. The First District determined that the outcome of the case depended upon the credibility of the student’s statements, and the inability to cross-examine the student witness was a violation of the teacher’s due process.
In People v. Rennie, 2014 IL App (3d) 130014, Defendant crossed the center line of a roadway and struck a motorcycle, killing one person and injuring another. Defendant subsequently tested positive for cannabis. Thereafter, defendant was sentenced to two and six years in prison to be served concurrently. The Court held that the DUI statute did not violate due process or equal protection, because the statute treats all illegal consumption the same and it has a rational relationship to the state’s interest in protecting the public. The sentence was not an abuse of discretion, nor was it improper for the court to consider the degree of harm in sentencing.
In People v. Harris, 2014 IL App (2d) 120990, Defendant was convicted for failure to stop after an accident involving personal injury and two counts of DUI. On appeal, the court determined that the trial court erred in admitting a breathalyzer machine logbook. In its determination, the court reasoned that there was a lack of evidentiary foundation since the State failed to present testimony that the officer documented and signed the logbook either at that time or a reasonable time thereafter.
In People v. Morris, 2014 IL App (1 st) 130152 (July 23, 2014), the Appellate court affirmed a decision finding actual physical control of a car while under influence of alcohol, where the man had been found passed out in the front seat, ignition off, driver’s side door open, and keys in his right hand. The court reasoned that neither his intent nor the fact that the ignition was off and car parked defines or explains actual physical control. The court affirmed the decision finding him in actual control of the vehicle while under the influence.
In Konfrst v. Stehlik, 2014 IL APP (1st) 132113 (June 20, 2014), the Court affirmed a decision regarding the Joint Tenancy Act, where an executor filed a citation proceeding against the decedent’s niece to recover assets held in various accounts. Under the Act, joint bank account owners must sign written agreements. The court found that evidence of Joint Tenancy for Bank accounts can be proven not only by the signature card, but also by outside factors
2016 IL App (2d) 150084 (March 8, 2016) Lake Co. (SCHOSTOK) Affirmed.
Dispute as to whom decedent intended to inherit her home. Court properly determined that decedent did not validly transfer her home into joint tenancy with one of her 4 sons. For deed to transfer title to property, it must be signed, sealed, and delivered. Even though there was a presumption, based on mother-son relationship between decedent and her son that there was a valid delivery of the deed, the presumption was cancelled out by failure of that son and decedent to record deed prior to her death.
Family Medical Leave Act
In Lagenback v. Wal-Mart Stores, Inc., No. 14-1022 (2014), the Seventh Circuit affirmed the District Court's finding that the employer did not terminate an employee as retaliation for the employee exercising FMLA Rights. The employer was able to present records of the employee's unsatisfactory job performance both before and after the employee's FMLA leave of absence. It was also found that the District Court did not err in regards to the employee's Title VII discrimination claim, where the people promoted ahead of the employee had different educations backgrounds and more relevant job experiences.
In Steenes v. Mac Property Management, LLC, 2014 IL App (1st) 120719 (July 23, 2014), the Appellate Court affirmed a decision finding a “move-in” fee to not be a security deposit nor prepaid rent. The tenant had full knowledge that the fee was non-refundable.
2016 IL App (1st) 150437 (March 30, 2016) Cook Co., 3d Div. (LAVIN) Reversed and remanded. (Court opinion corrected 4/7/16.) Plaintiff, age 15 at time of incident, filed personal injury complaint against school district and P.E. teacher, alleging willful and wanton misconduct for failing to provide protective eyewear during floor hockey game during high school physical education class that resulted in Plaintiff's eye injury. Plaintiff presented sufficient evidence at trial of conscious disregard for safety of students playing floor hockey. P.E. teacher was fully aware that safety goggles were available, as they were stored in same box as safety balls (used instead of hockey pucks), and P.E. teacher and Plaintiff testified they had seen ball occasionally bounce in the air. A jury could conclude that these judgment calls were willful and wanton, court erred in granting Defendants' motion for directed verdict. No evidence that P.E. teacher balanced competing interests and made a judgment call as to what solution to best serve those interests in deciding not to require students to wear goggles. Thus, Defendants were not entitled to immunity under Section 2-201 of Tort Immunity Act. (PUCINSKI, concurring; MASON, dissenting.)
In Hooker v. Ret. Bd. of the Fireman’s Annuity & Benefit Fund, 2014 IL App (1st) 131568, the court held that the estate of a deceased recipient of an annuity(widow of firefighter), made pursuant to the Pension Code, could not bring a cause of action against the Retirement Board for the benefit of her heirs. The court also determined that the estate of the recipient lost any right to a retroactive salary increase per collective bargaining agreements.
In Chamness v. Mays, 2014 IL App (5th) 130381 (August 4, 2014), the court affirmed a decision finding that a County had not abandoned a public roadway. Specifically, the road had become overgrown with brush and trees. The Court found taht since roads are an indispensible public necessity and that there had been no alternate route serving the same purpose, the county did not abandon the disputed portion of the roadway.
In In re Parentage of K.E.B., 2014 IL App (2d) 131332, the trial court’s decision allowing for supervision of mother and child only if she and father agreed on the place and time of visitation was reversed. The Appellate determined that this decision was not sufficient to ensure that the mother will receive visitation rights, even though she is provided a minimum of two visits per month.
Compass Group v. Illinois Workers’ Comp. Comm’n, 2014 IL App (2d) 130078, was a workers’ compensation case where the opinions of the claimant’s treating physician differed with that of the employer’s Section 12 examiner. The Commission resolved that the Section 12 examiner’s heightened expertise was not so compelling that it rendered opposite conclusion of the treating physician clearly apparent. On appeal, the employer was unable to demonstrate prejudice by the arbitrator’s denial of his motion to take evidence deposition of Section 12 expert, and found that the admitting expert’s report into evidence was sufficient. The case was remanded for the Commission to evaluate the opinions of physical therapists as to reasonableness and necessity of home modifications.
In Brais v. Illinois Workers’ Comp. Comm’n., 2014 IL App (3d) 120820WC, an employee filed for workers’ compensation benefits for an injury to her left wrist. The injury in question occurred while the employee was walking from a work-related meeting to her office in the Kankakee County courthouse on a defective sidewalk. Even though the general public faced the same hazard, her daily use of it caused the hazard to become a part of her employment. Thus, the injury arose out of her employment.
2016 IL App (4th) 150543WC (April 29, 2016) Macon Co. (STEWART) Reversed and remanded. Claimant filed application for workers' compensation benefits for foot injuries sustained during work. Claimant developed blister on bottom of his left foot, after having to repeatedly push clutch down forcefully. After Claimant lanced blister using sterilized needle, he developed infection in foot which required several foot surgeries and partial amputation of one toe. Even if Claimant's lancing of blister was immediate cause of infection, the infection would not have occurred "but for" existence of work-related blister. Thus, his employment remains a cause of his current condition of ill-being. (HOLDRIDGE, HOFFMAN, HUDSON, and HARRIS, concurring.)
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