Illinois Lawyer Referrals and Legal Guidance

Archive for December, 2011

Overview of Guardianship Law

Friday, December 30th, 2011

When an individual becomes the sole decision maker with respect to another person’s finances and personal decisions, such as healthcare and financial decisions, it is referred to as a guardianship. A typical example of a guardianship is that of an adult child becoming the guardian of an aging parent with Alzheimer’s.

In order to become a guardian, you must demonstrate that the “ward” is disabled and unable to care for themselves or their property. To begin the process of obtaining guardianship, which is ultimately granted by a judge, you must file a petition with the court, together with several other required forms in the county where the ward lives. Note that the ward must live or own land in Illinois in order to file for guardianship in the state.

Two initial requirements to become a guardian are that you are at least 18 years old and a U.S. resident but guardianship can be denied if you are determined to be “of unsound mind,” or disabled, or have been convicted of a felony.

Next, you must provide proof that guardianship is necessary, which can be difficult if the potential ward is in denial about needing such help. So, that is where doctors and psychiatrists come in and present their opinions to the judge. To protect the potential ward’s interest, they may be given an attorney and/or a guardian ad litem during the process.

There are two types of guardianship – guardianship of the person and guardianship of the estate – and you can seek one or both.

Guardianship of the person is where you have decision-making power with respect to healthcare and living arrangements. For this type of guardianship, you must show that the potential is unable to make an informed decision about such things.

Guardianship of the estate is where you have decision-making power with respect to financial matters. For this type of guardianship, you must show that potential ward is unable to manage his or her finances, such as paying bills and maintaining a checking account. This type of guardianship is harder to obtain and can be very complex. So, it is in your best interest to consult an attorney about how to proceed in obtaining guardianship of the estate.

Once guardianship is granted, the guardian is expected to use “substituted judgment,” which means that guardian does what the individual would have done if they were of sound mind, not what the guardian wants to do. The guardian must consider and respect the ward’s moral, philosophical and religious views.

While it is possible to obtain guardianship without the assistance of an attorney, it may be in your and the ward’s best interest to seek counsel. Since court appearances are required as well as a great deal of documentation, an attorney can only help in the process. In particularly difficult cases, such as where the potential ward denies needing help or you are seeking guardianship of a complicated estate, an attorney can assist you in proving your case.

To learn more visit, http://www.findgreatlawyers.com/GuardianshipElderLaw.htm .

Posted in Illinois Family Law | Comments Off

What to Consider Before You Hire a Legal Malpractice Attorney

Thursday, December 29th, 2011

Selecting a legal malpractice attorney is a careful process because, if you are seeking one, you have obviously had an unfortunate experience with a prior attorney. Below are some things to consider in selecting a legal malpractice attorney who will serve you well.

First, because you are suing a lawyer, you want to make sure your potential legal malpractice lawyer does not know this person. The legal community can be very small and conflicts of interest present themselves. Before you waste any time, confirm that there are no conflicts of interest.

An example of a conflict of interest would be if your potential legal malpractice attorney represents someone at the same firm as your former lawyer.

Next, you want to make sure that your potential legal malpractice attorney has solid experience in this area. Look for at least ten years of experience and a track record with cases similar to yours. Ask about prior similar cases and how they were resolved.

Come up with a strategy together. You and your attorney should be on the same page and he should understand and strive to meet your goals, or at least tell you if your goals are not reasonable and why not. You must have an open dialogue to ensure that your potential legal malpractice attorney understands what you expect and vice versa.

You should also ask about what to expect in terms of proceedings, such as how long things usually take and what will be asked of you. In terms of documentation, you may be asked to recount a timeline of what took place and produce prior emails and correspondences. You will only help your case and your attorney by having this information organized and readily available.

There is a heavy burden of proof in legal malpractice cases. You must prove that your former attorney didn’t simply make a mistake but that, if not for the mistake, you would have had a positive result. Discuss this with your attorney. Be sure to understand how you will try to prove this.

In terms of the client/attorney relationship, your attorney works for you and that means you can expect that he returns phone calls in a timely manner and answers questions in plain English. Set up a plan for communication so that you are kept up to date on the status of your case.

In terms of fees and costs, legal malpractice cases are handled on a contingency basis. This means that you pay nothing unless you win. If you win, your attorney gets a portion of the recovery amount. If you lose, your attorney gets nothing. It is part of doing business in this area of the law. You should also advance nothing for costs. Your attorney should advance court fees and other costs and either be reimbursed from the recovery amount or absorb the costs as a business expense.

Before you meet with a potential legal malpractice attorney, keep the above in mind to ensure that you are hiring the right attorney for you.

To learn more visit http://www.findgreatlawyers.com/LegalMalpractice.htm

Posted in Litigation | Comments Off

5 Facts About Illinois Misdemeanor Criminal Charges

Wednesday, December 28th, 2011

In Illinois, crimes can be classified as misdemeanors or felonies. Though misdemeanors are considered to be less serious than felonies, there can still be lasting negative consequences of a misdemeanor charge, if not handled properly. Here are 5 facts about misdemeanor charges that are most frequently asked about.

1. What is the difference between a misdemeanor and a felony?

Felony charges carry higher penalties, because they are considered more serious crimes. Misdemeanors have a maximum jail time of 364 days, in addition to the possibilities of probation, community service, and/or fines. Often felonies and misdemeanors involve similar crimes, but the ones that are charged as felonies have an extra factor that warrants the higher level of punishment. For example, there are crimes that are charged as misdemeanors if they are a first offense, but they become felonies if there is a repeat offense.

2. Are all misdemeanor crimes treated alike, or are there differences among them?

Misdemeanors are divided into 3 classes, in order of their seriousness, and therefore their possible punishment. The most serious is the Class A misdemeanor, which includes domestic battery and retail theft. For these crimes you can receive up to 364 days in jail, and fines up to $2500. Class B misdemeanors carry a punishment of up to 6 months in jail, and fines up to $1500. Included in this category are drug possession charges, depending on the amount of possession, and harassment charges. Lastly, Class C misdemeanors are punishable by 30 days maximum in jail, and up to $1500 in fines. Assault and lesser quantity drug possession charges are part of this class.

3. What is “supervision,” and how does it work?

Court supervision is the desirable goal for the outcome of a misdemeanor charge. It means that you have a period of time with certain conditions—mainly that you are not convicted of another crime—and after that time, if the conditions are met, your case can be dismissed with no conviction. Generally the period of supervision ranges from a few months, to two years. Whether you are granted supervision is up to the discretion of the judge, and it is not available for felony charges.

4. How is probation different from supervision?

Probation is similar to supervision, in that there is a period set for you to demonstrate you have satisfied certain conditions. However during the probation period, there is more active monitoring, usually including reporting to a probation officer. And most significantly, the end result, even with all conditions met, is still that a conviction is on your record.

5. Can I have my record cleared after a misdemeanor charge?

Often a misdemeanor charge can be expunged or sealed, which means that the record is not able to be accessed by the public. There is generally a waiting period from the time supervision ends until you are eligible to ask for your record to be sealed or expunged. There are some restrictions where you may not be eligible, including a subsequent conviction.

Posted in Five Tips | Comments Off

What to Consider Before You Hire a Potential Nursing Home Abuse Lawyer

Tuesday, December 27th, 2011

To discover that a loved one has been the victim of nursing home abuse is extremely emotional and stressful.

Deciding to file suit may be the best course of action but you need to first find the right attorney for you.

First, the area of nursing home abuse can be complex. So, you want someone who specializes in this area of the law and who has at least ten years of experience. An experienced attorney will likely have seen cases like yours before. Ask about them, how they were handled and what the result was.

An experienced nursing home abuse attorney will also be familiar with the nursing homes in the area and any relevant information that might affect your suit, such as prior cases against that home or changes in their insurance coverage or management. You want an attorney in the know.

Talk about your goals. What do you hope to gain from filing this suit? Come up with a strategy and plan together. You should make sure that you are clear about your wants and needs and your attorney should be honest with you about the practicality and likelihood of achieving them.

Your lawyer will likely ask for records with respect to the treatment of your loved one and any and all events leading up to this point. Try to go into the meeting organized with copies of medical records and a rough calendar of what took place and when. Being organized and detailed about the facts will only help your lawyer help you.

Ask who will be handling your case. Is the senior partner meeting with you for the initial consultation when a junior associate will actually be the one handling your case? You do not want anyone using your case as a training ground. It is okay to ask about that and make that clear.

Since nursing home abuse cases can take a long time, possibly years to resolve, there may be long stretches when you do not hear from your attorney. Come up with a communication plan that makes you comfortable. Do you want to hear once per month even if nothing changes? Let the attorney know that.

Nursing home abuse cases are typically handled on a contingency basis. This means that you should never be asked to advance any fees or costs. Rather, your attorney should perform the work and advance all costs, such as court fees, and if you recover something, your attorney is paid from that recovery amount. If you do not recover anything, your attorney will absorb the fees and costs of handling your case.

Bringing suit against a nursing home that may have mistreated your loved one can be difficult on you for a number of reasons, but the above guidelines should assist you in hiring someone who will work to get justice and not add to your already stressful experience.

To learn more visit, http://www.findgreatlawyers.com/NursingHomeMalpractice.htm

Posted in Injury Cases | Comments Off

Torts Overview

Monday, December 26th, 2011

What is a tort? How is it different than a crime? Let’s take the case of an individual who punches another individual, causing injury. It could be a crime – that would be up to the district attorney – but the person injured can also seek compensation from the person who punched him via tort law, or a “civil suit.”

In criminal law, the State brings the case against the defendant and the defendant faces the possibility of incarceration or fines, or both.

In tort law, however, the injured party brings the case and, if he wins, the defendant has to pay whatever compensation is awarded, also known as “damages.”

Of course, the person who punches another, for example, can be tried both criminally and civilly, facing both jail time and monetary damages to the victim.

It is important to also point out that tort law is different from contract law. In a contract, a party may fail to complete his end, so the other party seeks damages under contract law – not under tort law.

There are different kinds of torts. Consider this example of a negligent tort. Suppose an individual were texting while driving and lost control of his car, causing a collision with and injury to another individual.

Where a wrongdoer fails to act as a reasonable person would have under the same or similar circumstances, it is a negligent tort. You have a duty to exercise reasonable care while operating your car.

Consider again the example of when someone punches another person. This is an example of an intentional tort.

Where a wrongdoer intends to act and causes injury to another person, it is an intentional tort. Examples of intentional torts include battery, assault, false imprisonment, trespass, nuisance, and intentional infliction of emotional distress.

The other type of tort is called strict liability. This is where a wrongdoer does not necessarily have to be at “fault” to be liable. Take the example of a product defect. No matter how much care was taken to prevent such an injury, the product manufacturer would still be “strictly liable” if someone were injured by the defective product and were using it in a reasonably foreseeable way.

If you are considering bringing a civil suit, you should consult an Illinois tort litigation attorney. Tort litigation attorneys largely work on a contingency basis. This means you will not be required to pay anything upfront, including costs and fees, unless your case goes to trial or settles and you obtain an award. Your attorney will then receive a portion of your award in damages. If you do not obtain an award, your attorney will receive nothing and you will not be on the hook for anything. It is the risk that tort litigation attorneys are willing to take.

To learn more visit http://www.findgreatlawyers.com/IllPersonalInjury.htm

Posted in Injury Cases | Comments Off

Testifying in Court Article- 8 Things to Think About‏

Friday, December 23rd, 2011

If you are scheduled to testify at trial, you are probably very nervous. That’s normal. Just remember to listen to your attorney because he or she knows your case (hopefully!) and is on your side (also hopefully!). Also, here are 8 things to think about before you take the stand.

1. Practice makes perfect and it’s perfectly OK to rehearse. Your lawyer should take the time to review with you the questions he or she is going to ask you as well as possible questions from the other side. There should be no surprises. You should not be surprised by what you are asked by your lawyer and your lawyer should never be surprised by your answers to any questions.

2. Keep your answers simple. A good attorney will ask yes or no questions and you should answer with a yes or no. When you offer too much information, you run the risk of having your words twisted.

3. Don’t anticipate a question. Stay alert, listen and answer the question posed. Witnesses sometimes begin to answer a question before it’s been fully asked and that can cause you to be misunderstood or offer too much information. Rather, take your time, listen to what is said and be sure of your answer.

4. You only get one chance to make a first impression to a judge or jury. So, dress appropriately. Wrinkled clothing and an untidy appearance are simply not going to bode well with a Judge or jury. If you present an appearance of respect to the court, you will get respect and, in turn, your testimony will more likely be respected and believed.

5. Relax and speak loudly and clearly. A strong, clear voice will be an asset to you.

6. Be patient. While the Judge and lawyers are hashing out the technical stuff such as motions being filed or side conferences with the Judge, try to sit tight. You are getting your day in court and your chance to tell your story. So, let the lawyers and Judge do what they have to do even if it holds you up.

7. It’s ok to bring a friend or family member along for support. If they aren’t also a witness, they are allowed to sit in on the trial and it might help to have a friendly face to look at.

8. Last but certainly not least – Tell the truth (The whole truth and nothing but the truth). Do not embellish or say what you think the Judge or jury wants to hear. It could severely hurt your case because it gives the other side’s attorney a chance to pick apart the nuances of your testimony. Also, if you are asked a question you don’t know the answer to, say that you don’t know. If you don’t understand a question, just say that you do not understand. In a word, be honest.

Posted in Did You Know? | Comments Off

Protective Order FAQs

Thursday, December 22nd, 2011

What is a protective order?
A protective order is a court order that stops or prevents another person from engaging in abusive behavior such as physical or mental abuse, harassment or stalking. In some situations, the orders can be used to determine child custody, child support or counseling arrangements.

Who can obtain a protective order?
Adults in Illinois may obtain protective orders from either their nearest courthouse, the courthouse where property is located if the property is part of the order, or the courthouse where a related case (for instance a divorce or criminal case) is already taking place. Minors are generally allowed to obtain protective orders themselves in these same locations; however, in Cook County a parent or guardian must file on behalf of the minor.

Who can I obtain a protective order against?
You can only file for protective orders against household and family members. This includes relatives like spouses and ex-spouses, children, parents and siblings and household members like live-in boyfriends and girlfriends or roommates. You may also apply for an order against certain other individuals, even if you are not related and they never lived in your household, including current and ex-significant others, caregivers, and the other parent of your child.

Do protective orders apply to same-sex partners?
Yes, all the rules for protective orders apply equally to people involved in same-sex relationships.

What are the three types of protective orders?
Depending on the situation, you can obtain an emergency, interim or plenary protective order. You can receive an emergency order without the other party appearing in court. The order will typically last between 14 and 21 days, until a formal hearing can be scheduled. A plenary order is permanent, lasting up to 2 years with unlimited renewals, if appropriate. The plenary order is issued only after a formal hearing where both parties argue before the court whether they think the order is needed. An interim order is issued by the court, if necessary, to extend the protective order between the end of the emergency order and the hearing for the plenary order. Both parties will need to appear before the court before the interim order is issued.

When is a criminal protective order appropriate?
A criminal protective order is used when the other person has already committed a crime against you, such as abuse or harassment. As long as you agree to press charges and testify against the other person, you will receive the protective order you request. However, the order typically ends once the case is over. In addition, criminal protective orders do not apply to issues involving child custody, child support or counseling.

When is a civil protective order appropriate?
The benefit of a civil protective order is that you can obtain it before you have been mentally or physically harmed by another person and, if you receive a plenary order, it can be renewed indefinitely, if appropriate. You should file the petition for the order with the county clerk. Be sure to bring detailed information on specific behaviors, including dates if possible, that make you feel the order is necessary. This information is used to establish a “pattern of abuse” which is necessary to obtain the order.

If you are submitting a petition for an emergency order, the judge will review it, decide whether to grant your order, and if your emergency order is granted, will schedule a date for a plenary order hearing. If you submit a petition for a plenary order, the judge will schedule the plenary order hearing date. If a plenary order is schedule for you, you must attend – if you don’t attend, your order won’t be granted.

Can I violate the protective order?
If you have had a protective order filed against you, you must obey the order. Violating the order can be punishable by fines or even by jail time. If you disagree with the order, you must attend or schedule a hearing in court and try to have the order lifted. Until the order is lifted, you must obey, or you will face penalties.

To learn more visit http://www.findgreatlawyers.com/IllCrimLaw.htm

Posted in Criminal Defense in Illinois | Comments Off

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