By Elder Law Attorney, Kendall County Public Guardian, and senior estate planner Rick Law of the Estate Planning Center at Law Elder Law, a multi-generational law firm serving seniors and boomers in Aurora, IL
The increasing frequency of financial exploitation of seniors paints a grim picture. The seniors’ reluctance to report the instances and the murkiness of vulnerability versus incapacity makes the lawyer’s presence even more important.
Guardians and representatives of the estates of the elderly with dementia are at a considerable disadvantage compared with those lawyers representing adult clients without disabilities when it comes to investigating financial exploitation. Individuals with dementia will have a much more difficult time identifying the exploiter and explaining how they were financially exploited. Because of this disadvantage, many jurisdictions’ probate codes allow for a citation to discover assets.
A citation to discover assets “is a broad, pre-complaint discovery tool for guardians and representatives of persons who may not understand or be able to articulate what happened to their assets.” In layman’s terms, it’s designed to ‘level the playing field’ in the event that someone is not cognizant of what happened to their assets.
Article XVI of the Illinois Probate Act permits a disabled person’s guardian, representative, or “any other person interested in the estate” to file a petition for the issuance of a citation to discover assets against any person who the petitioner believes
(1) to have concealed, converted or embezzled or to have in his possession or control any personal property, books of account, papers or evidences of debt or title to lands which belonged to a person whose estate is being administered in that court or which belongs to his estate or to his representative or
(2) to have information or knowledge withheld by the respondent from the representative and needed by the representative for the recovery of any property by suit or otherwise. The petition will contain a request for the relief sought.
Citations to discover assets are useful because they allow lawyers to obtain discovery without having to file suit and without having to plead facts requisite to survive a motion to dismiss. That makes them a great discovery tool in financial exploitation cases involving clients with dementia.
The petition for the issuance of a citation to discover assets should lay out the facts as to why the respondent would have information regarding the disabled person’s assets. Citations to discover assets are meant to create a quick and comprehensive means of discovery of assets and their value.
If you’re ready to start getting your estate in order and secure your assets for the “worst-case” scenario, please give our office a call at 800-310-3100. Your first consultation is absolutely free. We’ll let you know what steps you need to take, right now, to protect yourself and your family. Call now.
Rick L. Law, Attorney, Estate Planner for Retirees.
Rick was named the #1 Illinois elder law estate planning attorney by Leading Lawyer Magazine. He has been quoted in the Wall Street Journal, AARP Magazine, TheStreet.com, and numerous newspapers and articles. Rick is the lead attorney for Law Elder Law, LLP, focusing in Estate Planning, Guardianship, and Nursing Home Solutions. His goal is to give retirees an informed edge when it comes to dealing with an uncertain future. Get flexible retirement strategies that work during good times and bad, plus information on how you can save your home and assets from being used to pay for long term care. Call 800-310-3100 for your free consultation now!