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Advanced Directives, Wills, and TODIs 101

September 12, 2024

Presenters:

Kim Thielbar, Prairie State Legal Services

Debbie Nall, Legal Council for Health Justice

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Prairie State is a non-profit law firm that provides free civil legal aid to people who cannot afford an attorney and who have a legal problem affecting their basic human needs.

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Legal Council for Health Justice uses the power of the law to secure dignity, opportunity, and well-being for people facing barriers due to illness or disability.

LCHJ Practice Groups

AIDS Legal Council (ALC)

Homeless Outreach Project

Children and Families Project

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WE

PRO BONO

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Agenda

  1. PSLS Project Overview
  2. LCHJ Project Overview
  3. Power of Attorney for Property
  4. Power of Attorney for Health Care
  5. Living Will/Declaration
  6. Wills
  7. Transfer on Death Instrument (TODI)
  8. Tips for Working with Clients
  9. How to get involved!

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PSLS/PBN Projects

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Two very similar projects!

  • DuPage Elder Law Clinic (DELC)
    • Serves DuPage and Kane County seniors out of PSLS’ office located in West Chicago

  • Advanced Directives for Seniors Project (ADSP)
    • Serves seniors throughout Prairie State’s 36 county service area; client location is different each clinic

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DELC & ADSP Project Overview

  • PBN volunteers will:
    • Meet with pre-screened PSLS clients by phone
    • Draft POAs, living wills, wills, and TODIs for clients
    • Review draft docs with clients by phone and make any needed changes

  • PSLS will assist clients with execution of documents

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Project Details

  • Most PBN contact with client is by phone or video�
  • Some DELC clinics are in person in somewhere in DuPage County
  • Client info and drafts are shared between PSLS and PBN via Google Drive

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No experience necessary!

  • PSLS will provide training, forms via Google Drive, and ongoing support

  • PSLS is a sponsoring entity for retired, inactive, and out-of-state attorneys under Rule 756(k)

  • Info about how to sign up at the end

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ALC Estate Planning Project

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ALC Estate Planning Project Overview

  • This project serves:
  • People impacted with HIV
  • People receiving care through our Medical Legal Partnerships
    • Federally Qualified Health Centers
    • Ryan White/HRSA funded programs that serve people impacted with HIV

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ALC Estate Planning Project Overview

  • PBN volunteers:
  • Meet with pre-screened ALC clients by phone
  • Draft POAs, living wills, wills, and TODIs for clients
  • Review draft docs with clients by phone or video and make any needed changes
  • ALC assists clients with execution of documents

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ALC Estate Planning Project Overview

  • All documents are exchanged electronically
  • PBN volunteers email documents to ALC staff
  • ALC staff are available to troubleshoot

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Why are these projects important?

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Powers of Attorney

755 ILCS 45/1-1 et seq.

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Overview

  • Documents that allow a person (the principal) to appoint someone else (the agent) to make decisions for him or her when he or she is no longer able to or wants to do so

  • Also called “durable powers of attorney”

  • Two kinds in IL
    • Property
    • Healthcare

  • The principal must be competent to execute a POA; cannot execute on behalf of someone else

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Statutory Short Forms

  • Law provides statutory short forms for both property and healthcare

  • But a POA may be in any form that meets basic requirements set forth in the Power of Attorney Act

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Top 5 Reasons to Use the Statutory Short Forms

  1. Most of the work is done for you�
  2. They allow considerable flexibility�
  3. The forms will have the same meaning and effect as described in the POA Act�
  4. Validity is less likely to be challenged �
  5. Providers readily recognize the statutory forms

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What happens with the forms?

  • They don’t get signed by a judge

  • They don’t get filed with the court

  • They don’t get recorded

  • Copies have same effect as original

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Qualifications of the agent

  • Must be 18 or older and competent

  • Does not have to be a family member

  • Should be someone the principal knows and trusts

  • Healthcare agent cannot be the principal’s attending physician or other healthcare provider

  • Property and healthcare agents need not be the same person

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Naming an agent

  • The statutory forms allow naming of successor agents, but not co-agents

  • If the principal names his or her spouse as an agent and the parties later divorce or legally separate, the agent-spouse will be deemed to have died at the time of judgment (in other words, the spouse is no longer the agent)

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Duties of the agent

  • Naming an agent does not obligate the agent to act on behalf of the principal

  • When an agent does act, the agent shall act in good faith for the benefit of the principal using due care, competence, and diligence in accordance with the terms of the agency and shall be liable for negligent exercise

  • An agent shall keep a record of all receipts, disbursements, and significant actions taken under the authority of the agency

  • Agent is not personally liable for the principal’s debts

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Termination

  • POA terminates upon:
    • Death of the principal or other, earlier terminating date/event identified in the POA
    • Revocation by the principal
    • Death of the agent (if no successor agent named)
    • Resignation of the agent (if no successor agent named)

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Power of Attorney for Property

755 ILCS 45/3-3

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What is it?

  • A form that allows a person (the principal) to appoint someone else (the agent) to handle the principal’s property when the principal is no longer able to or no longer wants to do so

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“But I don’t have any property…”

  • It’s a very broad definition of property (“anything that’s not medical;” “POA for finances”)

  • Specifically enumerated in the statutory short form:
    • Real estate transactions; financial institution transactions; stock and bond transactions; tangible personal property transactions; safe deposit box transactions; insurance and annuity transactions; retirement plan transactions; Social Security, employment and military service benefits; tax matters; claims and litigation; commodity and option transactions; business operations; borrowing transactions; estate transactions; all other property transactions.

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“I thought I was here for a will…”

  • PPOA is not a will�
  • PPOA does not determine how property is inherited after the principal’s death

  • PPOA is only valid during the principal’s lifetime; it is not effective after the death of the principal

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Statutory Power of Attorney for Property

  • Consists of three parts:
    1. Notice to the Individual Signing the Illinois Statutory Short Form Power of Attorney for Property
      • Must be on a separate piece of paper, in 14pt font�
    2. Illinois Statutory Short Form Power of Attorney for Property
      • Allows the principal to name an agent and successor agents and to specify the powers of the agent(s), including additions and limitations�
    3. Notice to Agent

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Is there anything the statutory form doesn’t cover?

  • Yes! These powers must be added if the principal wants the agent to have them:
    • To make gifts (be very specific – beneficiary, frequency, etc.);
    • To change beneficiaries of life insurance policies, retirement plans, or joint tenancy agreements;
    • To exercise powers of appointment;
    • To amend revocable trusts created by the principal

  • PPOA never has the authority to:
    • Make or change a will
    • Make or revoke a TODI

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PPOA and the Social Security Administration

  • The statutory form specifically includes Social Security benefits

  • BUT… the SSA, as a matter of policy, does not honor POAs

  • Some alternatives:
    • SSA Consent to Release of Information Form (3288)
    • SSA Appointment of Representation Form (1696)
    • Appointment as Representative Payee
    • Guardianship

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To spring or not to spring?

  • POA for Property becomes effective immediately upon execution unless the principal specifies a different effective date
    • e.g. “upon my 75th birthday;” “when my attending physician states in writing that I am no longer able to make my own medical decisions”

  • Immediate effective date does not prevent the principal from acting on his own behalf while he has capacity to do so

  • Which to choose?

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What are some advantages and disadvantages of a springing effective date?

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Revocation

  • Principal can revoke or amend at any time in any manner
    • Best practice is to revoke in writing, following the same requirements for execution

  • In practice, the principal must notify the agent and others who have a copy of the POA of the revocation or amendment
    • Advise principal to keep a list of people to whom he gives a copy of the POA

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Let’s see if you’ve been paying attention…

Mary comes to you for assistance with advance directives. You discuss with her the different advance directives available and ask her which she wants to execute.

She tells you that she doesn’t need a Power of Attorney for Property because she doesn’t own a house. What do you tell her?

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POA for Property Resources

  • Statutory Short Form: 755 ILCS 45/3-3
    • Template on Prairie State Google Drive
    • Template provided ALC project provided PBN project manager.

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Power of Attorney for Healthcare

755 ILCS 45/4-10

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What is it?

  • A form that allows a person (the principal) to appoint someone else (the agent) to handle the principal’s healthcare when the principal is no longer able to or no longer wants to do so

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What is healthcare?

  • “Health care” means any care, treatment, service or procedure to maintain, diagnose, treat or provide for the patient's physical or mental health or personal care

  • Includes end of life decisions, as well as day-to-day medical care and admission to/discharge from hospital, nursing home, mental health facility, etc.; gives agent access to the principal’s medical records

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Statutory Power of Attorney for Healthcare

  • Consists of two parts:

    • Plain language “notice,” in question and answer format

    • The form itself

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Effective date

  • Statutory form provides three options:
    1. Goes into effect only once principal can no longer make decisions for herself, as determined by a physician (if no option is checked, this option applies)
    2. Same as #1, but “Starting now, for the purpose of assisting me with my health care plans and decisions, my agent shall have complete access to my medical and mental health records, the authority to share them with others as needed, and the complete ability to communicate with my personal physician(s) and other health care providers, including the ability to require an opinion of my physician as to whether I lack the ability to make decisions for myself.”
    3. Goes into effect immediately and continues after incapacity. Specifies that principal can still make decisions for herself while she is able.
  • No clear place to specify a different effective date (limitations section?)

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“As determined by a physician”

  • What does this mean?

  • A physician may determine that the principal is unable to make health care decisions for himself or herself only if the principal lacks “decisional capacity”

  • "Decisional capacity" means the ability to understand and appreciate the nature and consequences of a decision regarding medical treatment or forgoing life-sustaining treatment and the ability to reach and communicate an informed decision in the matter as determined by the attending physician.

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Life sustaining treatment

    • HCPOA gives the agent the authority to make decisions about life sustaining treatment (tube feedings or fluids through a tube, breathing machines, and CPR)

    • Provides that the agent will always consider relief of suffering and quality of life, and will weigh burdens versus benefits when making decisions about life sustaining treatment

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Life sustaining treatment

  • HCPOA also gives the principal the option of specifying his or her wishes regarding life sustaining treatment
    • Option 1: Quality of my life is more important than the length of my life. Do not want treatments to prolong my life or delay my death if doctor believes I will not wake up or recover my ability to think, communicate, and experience my surroundings.
    • Option 2: Staying alive is more important to me. I want my life to be prolonged to the greatest extent possible.

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Termination

    • HCPOA terminates on the death of the principal

    • Exceptions – powers that extend beyond the life of the principal:
      1. Organ donation
      2. Authorize an autopsy
      3. Direct the disposition of remains

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Revocation

  • Form contains language revoking all prior powers of attorney for healthcare

  • Principal can revoke at any time by:
    • Signed and dated writing
    • Destroying the original
    • Oral revocation in front of a witness who puts the revocation in writing

  • May be amended at any time by a written amendment signed and dated by the principal or person acting at the direction of the principal

  • In practice, the principal must notify the agent and others with a copy of the POA of the revocation or amendment
    • Advise principal to keep a list of people to whom he gives a copy of the POA

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Delayed revocation

  • New provision eff. 7/30/21�
  • Two options:
            • I elect to delay revocation of this power of attorney for 30 days after I communicate my intent to revoke it
            • I elect for the revocation of this power of attorney to take effect immediately if I communicate my intent to revoke it�
  • Explanation: “If you are concerned you may revoke your power of attorney at a time when you may need it the most, you may initial the box at the end of the form to indicate that you would like a 30-day waiting period after you voice your intent to revoke your power of attorney. This means if your agent is making decisions for you during that time, your agent can continue to make decisions on your behalf. This election is purely optional, and you do not have to choose it. If you do not choose this option, you can change your mind and revoke the power of attorney at any time.”

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“I want a DNR…”

  • Do Not Resuscitate (DNR)/Practitioner Orders for Life-Sustaining Treatment (POLST) http://www.idph.state.il.us/public/books/dnrform.pdf

  • HCPOA is not a DNR, but there is overlap

  • DNR requires a physician’s signature and should be completed in cooperation with a physician

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What if I don’t have an HCPOA?

  • Medical decisions can be made for a patient who lacks decisional capacity by a surrogate in accordance with the Health Care Surrogate Act (755 ILCS 40/1 et seq.)

  • Statutory order of surrogacy:
    1. the patient's guardian of the person;
    2. the patient's spouse;
    3. any adult son or daughter of the patient;
    4. either parent of the patient;
    5. any adult brother or sister of the patient;
    6. any adult grandchild of the patient;
    7. a close friend of the patient;
    8. the patient's guardian of the estate.

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Back to Mary

After you resolve the Power of Attorney for Property issue, Mary tells you that she would like a Power of Attorney for Healthcare.

Mary sees a number of doctors and takes many medications. While she is capable of making her own medical decisions, she tells you that she finds it all overwhelming and prefers for her adult daughter to manage her healthcare and talk to her doctors.��How do you advise Mary to complete the HCPOA?

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Declaration/Living Will

755 ILCS 35/1 et seq.

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What is it?

  • An advance directive that records the declarant’s direction to withhold or withdraw medical care that only prolongs the dying process when the declarant has a “terminal condition” and the attending physician has determined death is imminent but for death delaying procedures

  • Allows for the provision of comfort care

  • Called both a “Declaration” and a “Living Will”

  • It is not a DNR

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Statutory form

  • There is a statutory form, but a declaration may be in any form

  • Common to add language to the declaration regarding artificial feeding and hydration

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Effectiveness

  • A declarant with decisional capacity can still make decisions about treatment

  • A declaration is not operative if the declarant has an agent acting under a valid HCPOA

  • If the declarant is pregnant, the declaration shall be given no force and effect as long the attending physician determines that continued application of death delaying procedures could enable the fetus to develop to the point of live birth �
  • Remember: the declaration applies only under narrow circumstances – terminal condition and imminent death

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Revocation

  • May be revoked at any time, without regard to condition, by:
    • Destroying or defacing in a manner indicating intention to cancel�
    • Signed and dated written revocation�
    • Orally in front of a witness who puts the revocation in writing

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How is a Declaration different from an HCPOA?

  • Declaration applies only to specific life sustaining treatments when specific conditions are present; HCPOA can cover a much broader range of medical treatments and situations

  • HCPOA appoints an agent to make medical decisions; Declaration is a statement of wishes and does not appoint an agent

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Coordination with HCPOA

  • A person can have both an HCPOA and a Declaration

  • The Declaration is not operative while the declarant has an agent acting under a valid HCPOA

  • BUT conflicting statements regarding life sustaining treatment in the HCPOA and declaration could lead to confusion

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Back to Mary

Mary executed her HCPOA and, in the section regarding life sustaining treatment, she indicated that staying alive is more important to her and she wants her life to be prolonged to the greatest extent possible.

She now tells you that she wants to execute a Declaration/Living Will. How do you advise her?

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Wills

755 ILCS 5/4-1 et seq.

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What is it?

  • A document that directs the disposition of a person’s real and personal property upon their death

  • There is no statutory form (but PSLS has a form, and both PSLS and LCHJ have questionnaires!)

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Am I Required to Have a Will?

  • No! If a person dies without a will, intestate succession rules apply (755 ILCS 5/2-1):
    1. If there is a surviving spouse and also a descendant of the decedent: 1/2 of the entire estate to the surviving spouse and 1/2 to the decedent’s descendants per stirpes.
    2. If there is no surviving spouse but a descendant of the decedent: the entire estate to the decedent’s descendants per stirpes.
    3. If there is a surviving spouse but no descendant of the decedent: the entire estate to the surviving spouse.
    4. If there is no surviving spouse or descendant but a parent, brother, sister or descendant of a brother or sister of the decedent: the entire estate to the parents, brothers and sisters of the decedent in equal parts, allowing to the surviving parent if one is dead a double portion and to the descendants of a deceased brother or sister per stirpes the portion which the deceased brother or sister would have taken if living.
    5. Etc.

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Do I Need a Will?

  • Maybe

  • Does the person want to follow intestate succession?

  • Does the person have property subject to a will?
    • Life insurance benefits, retirement account, etc. are not

  • Are alternatives available?
  • Joint tenancy/ownership
  • TODI
  • Payable on death account

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What About Probate?

  • Probate requires time and money

  • Person in possession of the will must file the will with the Clerk of Court immediately upon the testator’s death
  • This is different than filing a probate case

  • Will does not necessarily have to be probated
  • Small estate affidavit can be used if no real estate and value of estate is less than $100K

  • Dying without a will doesn’t necessarily avoid probate

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Revocation

  • May be revoked only by:
        • Burning, cancelling, tearing or obliterating it by the testator himself or by some person in his presence and by his direction and consent
    • Execution of a later will declaring the revocation
    • Execution of a later will to the extent that it is inconsistent with the prior will
    • Execution of an instrument declaring the revocation and signed and attested to in the same manner as a will

  • Divorce revokes former spouse’s interest and nomination to fiduciary office

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Changing a Will

  • Any changes, additions, deletions, etc., must be signed and attested to in same manner as will itself

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Per stirpes and per capita

  • Per stirpes
  • “By the root”
  • Each branch gets an equal share

  • Per capita
  • “By the head”
  • Each person gets an equal share

Tip: Just ask the client what they want in plain language

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Transfer on Death Instrument (TODI)

755 ILCS 27/1 et seq.

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What is it?

  • A document that allows an owner to transfer real property to a designated beneficiary or beneficiaries, concurrently or successively and upon any contingency, effective at the owner’s death

  • There is no statutory form (but PSLS has a form!)

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Why Consider a TODI

  • Takes residential real estate out of probate
    • Allows quick transfer of real estate, even if other property has to be probated
    • Avoids probate entirely if there is not other property

  • Not a good option if owner wants to ensure beneficiary takes specific action (e.g. sell property and split proceeds between 8 people)

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TODI must be recorded

  • Record, record, record!
  • Must be recorded before the owner's death in the public records in the office of the recorder of the county or counties in which any part of the residential real estate is located

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Effect of TODI During Owner’s Life

  • Basically none

  • Designated beneficiary has no interest in the property until owner’s death

  • TODI doesn’t prevent owner from selling, encumbering, etc. property

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Execution

  • Must be prepared by a licensed attorney or the owner
  • Must contain the essential elements of an inter vivos deed
  • Must state the transfer occurs at the owner’s death
  • Must be signed by the owners, 2 witnesses, and notary
  • Beneficiaries and their spouses cannot be witnesses

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Revocation

  • May be revoked by:
    • Subsequent TODI recorded before the owner’s death
    • A specific revocation executed in same manner as TODI and recorded before the owner’s death

  • Cannot be revoked by:
    • A revocatory act on the TODI
    • An unrecorded instrument
    • A will
    • PPOA agent

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Effect of TODI at Owner’s Death

  • Title automatically transfers to the designated beneficiary in accordance with the TODI

  • Designated beneficiary may record a Notice of Death Affidavit, but this is not a condition to transfer of title

  • Beneficiary may disclaim their interest

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Real property

  • An interest in realty located in Illinois capable of being transferred upon the owner’s death

  • May be either residential or commercial (a change in 2022)

  • Does not have to be homestead property

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Joint Owners

  • Joint owner = individual who owns real property concurrently with one or more individuals with a right of survivorship

  • Includes a joint tenant or tenant by the entirety

  • Does NOT include a tenant in common

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Joint Owners, cont.

  • One or more joint owners may execute a TODI

  • If all of the joint owners execute a TODI, then can only be revoked by all then living joint owners

  • If less than all of the joint owners execute a TODI, the TODI is governed by the designation of the joint owner who is the last to die of all the joint owners. If the last to die joint owner did not execute a TODI, the designation of any prior deceased joint owner is ineffective

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Beneficiaries

  • Includes trusts and corporations

  • If the owner has identified 2 or more designated beneficiaries to receive concurrent interests in the real property, the interests are taken in equal and undivided shares with no right of survivorship

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What if the Designated Beneficiary Dies Before the Owner?

  • If designated beneficiary is a descendant of the owner, the then living descendants of deceased beneficiary take per stirpes
  • If beneficiary is not a descendant of the owner:
    • If there is only 1 designated beneficiary, the property transfers to the owner’s estate
    • If there are 2 or more concurrent beneficiaries, and one or more but less than all predecease the owner, then the deceased beneficiary’s interest goes to the remaining beneficiaries

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Surviving spouse can renounce

  • Must record a written renunciation within 7 months after the date of the owner’s death

  • Surviving spouse may waive right to renounce by executing a waiver as part of the TODI

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Effect of renunciation

  • If the surviving spouse renounces the TODI, the spouse gets:
    • 1/3 interest if the owner leaves a descendant; or
    • ½ interest if the owner leaves no descendant

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Practice Tip

  • If client is executing both a will and a TODI, reference the real estate and the TODI in the will�
  • Get property legal description from the �Recorder’s website

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Working with Clients with HIV & AIDS

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AIDS Confidentiality Act 410 ILCS 305

  • How is it Enforced?
    • Enforcement through individual claims in state court.
  • What are the penalties?
    • Class A Misdemeanor with Statutory Damages:

$2,000 for Negligent Disclosures

    • $10,000 for Intentional Disclosures
    • Injunctive Relief
    • Attorneys’ fees

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Why is the AIDS Confidentiality Act relevant to my work with the client?

  • The populations we serve, majority LGBTQ+ and PLWH, experience historical and cultural/social discrimination/stigma in their daily lives.
  • Intersection of Trauma and Sexual Orientation and Gender Identity- LGBTQ+ youth suffer from potentially traumatic events at significantly higher rates than their straight and cisgender peers.
  • Stigma of HIV is still prevalent, especially in communities of color.
  • Long-term survivors deal with their own unique trauma- they believed they would die, but they’re still here.

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HIV Stigma

  • What is HIV stigma?
    • HIV stigma is negative attitudes and beliefs about people with HIV. It is the prejudice that comes with labeling an individual as part of a group that is believed to be socially unacceptable
      • Believing that only certain groups of people can get HIV
      • Making moral judgments about people who take steps to prevent HIV transmission
      • Feeling that people deserve to get HIV because of their choices

“Those people with HIV got what they deserved”

“Those people, who do that get HIV”

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HIV Discrimination

  • “HIV discrimination is the act of treating people living with HIV differently than those without HIV”
  • Some examples include:
    • A surgeon, who had cleared a patient for surgery, later refuses to perform the medical procedure after they realize the patient impacted with HIV
    • A worker in a highly specialized field, who had recently received a commendation at work, was demoted weeks after her employer learned of her HIV status
    • An employee refused to sit next to an HIV impacted co-worker in their office
    • A family member illegally evicted their relative after they learned of the relative’s HIV status

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How can you protect the privacy of people living with HIV?

  • Know the law (HIPAA, IL AIDS Confidentiality Act)
  • Ask yourself, “is it necessary for me to mention this person’s HIV status”?
  • Be clear on the person living with HIV’s preferred method of communication. Always check.
  • Be cognizant of who is present when speaking to client (ask – are you on speakerphone? Are they in an environment where they can speak freely?)
  • Disclose the minimum information necessary to accomplish an intended purpose.

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I still have questions???

  • When in doubt, talk it out.
    • Call us and we are more than happy to talk through any client scenario
    • We are available to answer any questions you may have regarding HIV status, confidentiality, stigma and discrimination

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Tips!

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Assess capacity

  • Always meet with the client alone first
  • Establishing rapport can help assess capacity (tell me what brings you here; why are you interested in POAs?)
  • If you have concerns about capacity, talk to an attorney at the legal aid program!

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Ascertain the client’s wishes

  • Always meet with the client alone first
  • What is the client trying to accomplish?
  • Talk to the client about their agent
    • Do they trust the person? How long have the known the person? Have they discussed POAs with their agent?

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Document drafting

  • Include agent phone numbers even when not specifically requested�
  • Use names consistently throughout the documents (e.g. Robert Smith, Robert A. Smith, Bob Smith)�
  • Strikethrough options not selected�
  • Add your name in “prepared by” section at end of doc

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PSLS Process

  • Documents shared between PBN and PSLS via Google Drive (we have instructions!)

  • Always start from the document template �
  • Create docs in Google Doc; don’t convert to Word
  • PSLS volunteers have PSLS Google accounts – must log in and enable multi-factor authentication within 14 days

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LCHJ Process

  • PBN volunteers will receive an LCHJ email address
  • Once conflicts have been cleared, PBN emails volunteer the client files and a link to templates in Google Drive
  • Use Microsoft Word to draft documents
  • Volunteers share drafts and final documents by email

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Kim Thielbar

Director of Pro Bono Services

Prairie State Legal Services

31W001 E. North Avenue, Suite 200

West Chicago, IL 60185

630-580-3322

kthielbar@pslegal.org

www.pslegal.org

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Deborah Nall

Senior Staff Attorney, ALC Program

Legal Council for Health Justice

17 N. State St. Suite 900

Chicago, IL 60602

312-605-1966 direct

312-427-8990 office dnall@legalcouncil.org