Legal Question in Elder Law in Illinois

I currently have POA rights under my mother's trust for health and estate. I have been using her funds to pay for her bills and maintaining her home while she is in a nursing home. The trusts states that the POA is allowed to gift others and themselves. However, the state (dook county) will be taking guardianship of my mother within the next six months and the Judge allowed me to continue acting as POA. Would I be allowed to gift family members prior to my resignation or would the court find the gifting to be fraudulent?

Asked on 7/05/15, 4:53 pm

2 Answers from Attorneys

Jonathan Shimberg Shimberg and Crohn, P.C.

If in fact the money is in trust, frankly the court is making a misteak. A trustee can not give a POA. you may be acting as the successor trustee. If you mean Cook County, the transfer by gift just before receipt of public aid is attackable by the State, You are entitled to be compensated for the time and expense you have incurred in acting on your mother's behalf (as long as you declare that reimbursement as income on your income tax return.

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Answered on 7/06/15, 4:01 am
Steve Raminiak Law Offices of Steve Raminiak, P.C.

The Cook County Guardianship Court will probably not approve of any efforts to make gifts of your mother's assets. Generally speaking, while the POA might authorize gifts, your mother is a disabled person and you, as Agent, probably shouldn't deprive your mother of assets that she may ultimately need for her care. However, to be absolutely sure, I encourage you to file a Petition with the Court that requests PRIOR approval for whatever gifts you believe are appropriate.

To put this simply, be sure ask the Judge if it would be OK to make the gifts BEFORE you actually give anything away. I predict that the Judge's answer will probably be "No," but you may have circumstances that allow an exception to the general rule.

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Answered on 7/06/15, 3:44 pm

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