NEWS ARCHIVES: JUNE - AUGUST 2011
THE ILLINOIS CIVIL UNION ACT, TRUSTEES, GUARDIANSHIP & AMENDED ILLINOIS HEALTHCARE POWER OF ATTORNEY
Illinois Civil Union Act could Affect nearly 65,000 Citizens
According to the Williams Institute of the UCLA School of Law, the 2010 Census counted approximately 32,000 same-sex couples in the State of Illinois. More than half of those couples, approximately 18,000 reside in Cook County and more than half of those couples, 58% are comprised of women.
2 Recent Cases in the News Highlight Trustee Selection Woes
The first case is cuts across Civil Rights and Probate Law. The estate in question is that of Civil Rights Heroine, Rosa Parks. At issue is the Civil Rights memorabilia that comprises the bulk of her estate. The case has been ongoing since 2005 when it was learned that Ms. Parks appointed a long-time friend and colleague as Trustee and Executor. Ms. Parks' nieces and nephews argued that the long-time friend used undue influence on Ms. Parks and thus the estate documents should be considered invalid. The parties settled and the court appointed 2 attorneys as co-trustees. Now, the long-time friend is arguing that the co-trustees shouldn't be trusted and that they were appointed because of a corrupt bench. The ultimate victor is anybody's guess, but what is certain is that because the trustee wasn't selected with appropriate foresight, legal fees are eating away at this historical estate.
The second case involves a trust created by Henry C. Rohlf, who named himself as beneficiary and the bank, BNY Mellon, as trustee. At the time, the bank was also a secured creditor of Rohlf. Next, Mr. Rohlf used trust assets as collateral to increase the size of his bank loan. Well, the economy tanked and Mellon went before the Delaware court to dip into the trust principal because the trust income was insufficient to cover the note. The trust was established to protect Rohlf's assets. Yet, he designated a creditor as trustee.
New Health Care Power of Attorney Law Enacted in Illinois
While it doesn't change the old law substantially, it does make these power of attorneys compliant with existing state health care laws. So the HIPAA language is included in the new forms. More expedient for lawyers and more cost effective for clients with lawyers who are in the know.
Parental Rights Doctrine Clarified for Guardianship Cases
On June 20, 2011, Justice Chapman delivered a unanimous opinion, which clarified the Superior Rights doctrine regarding child custody. The case involved a couple who became coguardians of 2 children. After the relationship ended, one party initiated guardianship termination proceedings after the couple's relationship ended. The superior rights doctrine is a rebuttable presumption that gives deference to biological parents over nonparent third parties in custody and visitation issues. The court's opinion emphasized the fact that the doctrine was rebuttable and ruled that, in fact, the presumption was rebutted (or "overcome") once a court granted guardianship. In re T.P.S., a Minor Child, and In re K.M.S., a Minor Child, No. 5-10-0617, Appellate Court of Illinois Fifth District.
Illinois Governor Stands by Civil Union Law
According to the Chicago Sun-Times, Catholic Charities, an organization that has been providing foster care services for children in Illinois for more than a century decided that it would not place children in homes of same-sex couples. Governor Quinn, who is Catholic, refused to bend the law for Catholic Charities and cut the organization's state contracts.
But, on July 17, the Governor's action has been successfully challenged in a "downstate" court and is now engaged in an intense legal battle. However, the ACLU has joined with the State on August 2, arguing that the religious tenets of Catholic Charities have nothing to do with the State's law mandating that it does what is in the best interest of the child, which is the golden rule for adoption and guardianship cases involving minors.
Amended Power of Attorney Act - Pros and Cons
On July 1, Illinois' Power of Attorney Act amendments went into effect and brings both benefit and burden to those using a power of attorney. One benefit is that the new law incorporates the HIPAA language required by hospitals and other medical institutions to release medical records to the agent. However, users are somewhat burdened by the additional requirement for witnessing similar to that required for a will. Principals and agents should also be mindful of the notice requirements. Whether married, partnered, or single, a power of attorney is an important document to have in case of temporary illness and incapacity. Legislation is on the horizon that will further affect power of attorneys in Illinois, so stay tuned.
Leading the parade was Mayor Rahm Emanuel. Illinois Governor Quinn, who signed the Civil Union into law, was not far behind as were many other key supporters of LGBT and women’s rights including Attorney General Lisa Madigan, Cook County Board President Toni Preckwinkle, and Representative Jan Schakowsky (D-IL). Thousands lined the main thoroughfares of Lakeview to support the community in advocating against homosexual discrimination. Heard from the east coast were cheers from New York, which legalized same-sex marriage late Friday evening, June 24.
Civil Unions in Illinois
On January 31, 2011, Illinois' Governor, signed the Illinois Freedom of Religion and Civil Union Act ("Civil Union Act"). The Act provides that couples entering a civil union, often same-sex couples, have the same rights and obligations of Illinois married couples. The Act goes into effect on June 1, 2011.
As many same-sex couples and cohabitants, understandably, celebrated this progressive step by the State of Illinois, a number of attorneys and government agencies quickly understood the positive and negative consequences of the legislation. Irrespective of the state benefits, limitations imposed by local, state and federal governments still exist. Illinois couples will confront jurisdictional challenges because, while Illinois and a handful of other states recognize civil unions, most states still do not.
Additionally, some counties in Illinois still retain jurisdiction over related matters such as adoption and, unlike Cook County, do not allow same-sex couples to adopt. Moreover, the states that do not recognize civil unions are not legally bound to do so, meaning Illinois civil union partners still need the same documents they needed before the legislation's enactment when travelling to or through states where civil unions are not recognized. Finally, while the executive branch of the federal government recognizes that the Defense of Marriage Act ("DOMA") is unconstitutional and refuses to defend it, unfortunately, Congress has not repealed DOMA.
Coupled with the jurisdictional and legal impositions are practical considerations such as changing the current forms and creating new forms to be used in the state. Clerks and judges must be informed and courts allowed to "catch up." Professional analysis also indicates that testamentary documents are going to be scrutinized more closely during probate with respect to the intent of the testator, especially where a question of heirship exists. The positive advantage and most important point, of course, is that couples who were once discriminated against because of their sexual orientation will no longer be discriminated against by Illinois' state laws.
Still, what does this mean for Illinois couples who want to join in a civil union
Your union will be recognized in Illinois, Vermont, Connecticut, New Jersey, New Hampshire, and Hawaii. However, if you and/or your partner move to or travel through or within any other state, some or all of the state benefits you enjoy in Illinois and those states mentioned above, will not be provided. Also, NO BENEFITS from the federal government will be provided.
To ensure you and your partner are protected you should contact an attorney.
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