Discover, Recover, or Both?
By Rick Law, founder of the multi-generation Law Firm at Law Elder Law, located in the West Chicago suburb of Aurora, IL. As I’ve discussed in previous articles, citations to discover and recover assets are important tools your lawyer may use when they need to recover money and property of a client who is the victim of financial exploitation because they allow for discovery without having to file a lawsuit. Citations to discover assets are meant to create a quick and comprehensive means of discovery of assets and their value. Article XVI of the Illinois Probate Act empowers the court to hear evidence offered by any party and allows the court to determine all questions of title, claims of adverse title, and the right of property, and enter such orders and judgment as the case requires. The court may compel the appearance of the respondents, compel discovery, and enforce its orders through its contempt powers. On the other hand, citations to recover assets are subject to dispositive motions. Filing a petition for the issuance of a citation to recover assets is basically saying, “This money has been stolen and we have a citation against you.” It means the people served have to appear in court and prove that they didn’t steal the money. If it’s proven that they stole money, then the lawyer can issue a rule to show cause against them if they do not put the money back. And if they do not comply, they’re in contempt of court, which means they can go to jail. This power is typically found in a state’s Probate Act and the Code of Simple Procedures as well. The theft does not have to be proven first. Your lawyer just needs to have permission to file the citation. So, lawyers go in on a petition and ask for the citation to be granted. Another thing to keep in mind is that the petition to recover assets is subject to dispositive motions for failure to state a claim. Although a citation to recover assets is a procedural mechanism, it does not typically create any substantive legal rights. So when using a citation to recover assets, your lawyer must plead cognizable legal theories such as incapacity or undue influence, coercion, and duress. Undue influence, coercion, and duress are very often pleaded in the alternative. To win on the theory of incapacity, your lawyer must show that at the time of execution of whatever was executed, clients lacked the requisite mental capacity to understand what they were signing. That usually involves a combination of expert testimony. This means retrieving all the medical records going back as far as possible, and having your attorney talk to all the treating doctors if the individual was going to a doctor. Then your lawyer needs to have a doctor, such as a forensic psychiatrist, review the records and try to make a determination as to when capacity would have kicked in and at what level. This is all combined with whatever environmental evidence there is. For example, neighbors might say this person loved the rose garden and was meticulous about it, but around a certain period of time, the neighbors noticed that they never saw the person leave the house, and the garden became weed infested and the lawn overgrown. Too many families needlessly lose everything they have. Don’t let that be you. If you need help building a fortress around your estate to protect it from creditors, predators, and the cost of chronic disease, 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, because when you’re out of money, you’re out of options! Sincerely, 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!