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Law notes

WINTER 2019

ATTORNEY CHRISTINA M. WILLMAN JOINS FIRM

                We are pleased to announce that attorney Christina M. Willman joined our law firm effective August 1, 2018. Christina began her work with Elliott & Trainor, P.C. in November of 2017, performing special projects for the firm.

                To date, Christina has had experience in many areas in which the firm practices, including Agribusiness, business and commercial law matters, estate planning, real estate, banking and financial matters, and litigation. She has already worked with many clients of our office and has gained substantial court experience since joining the firm.

                Christina brings to the firm a diverse experience in the Agriculture industry. She grew up in a rural town, where she participated in FFA for all 4 years of high school. She was chapter Secretary for her high school, showed livestock at the local county fair, attended conferences, received her State Degree and won two state championships in Horticulture and Agronomy. Christina then went on to Nationals for Horticulture and Agronomy. Her family was also in the dairy industry. She received her bachelor’s degree in Agribusiness and completed internships at a regional fair and also a landscape company. Christina also directed and organized the FFA State Finals competition for Agronomy and competed in the National Collegiate Landscape Competition.

                While in law school, she continued to stay involved in the industry by choosing legal internships at Vermeer Corporation in Pella, Iowa and Michigan Farm Bureau. At Vermeer, Christina was part of the in-house counsel department, where she gained experience in drafting various types of contracts, federal and state regulations, and trademarks and copyrights. Christina also worked on general corporate projects, such as drafting new provisions for the employee handbook, drafting the Code of Conduct, and analyzing different department materials for liability. At Michigan Farm Bureau, Christina was also part of the in- house counsel department, where she analyzed farmers liability for pending legislation. In addition, Christina worked on providing possible solutions to current agriculture issues that would help farmers. During her time at Michigan Farm Bureau, Christina meet with members on farm tours to discuss their concerns and volunteered to coach high school students for appellate arguments at the Michigan Supreme Court.

                Christina earned her Juris Doctor Degree in May 2018 from the University of Iowa College of Law, where she worked as a Student Attorney in the Legal Clinic in the estate planning and general litigation groups. She also competed on the Jessup International Moot Court Team.

                 Since moving to Freeport, Christina has joined the Stephenson County Farm Bureau and wants to become more active in the Freeport community. Christina looks forward to serving the needs of both new and existing clients of the firm.

ILLINOIS EXPANDS FARM NUISANCE SUIT ACT

                Farmers who own and manage livestock and horses may be protected against certain nuisance claims due to recent changes to the Farm Nuisance Suit Act (“the Act’). Effective January 1, 2018, the definition of farm in the Act was expanded to include the feeding, breeding, keeping, and management of livestock, horse breeding and horse keeping.

                The Farm Nuisance Suit Act is a defense for farmers to certain nuisance suits that may arise. The Act originated to protect agricultural areas from becoming a nuisance because of the surrounding area’s changed conditions. A nuisance claim is brought by a person or corporation when another person or corporation does something that is a substantial invasion of the other’s interest in the use and enjoyment of his or her land. The invasion must be substantial, unreasonable, and noticeable by one’s senses. Private nuisances can be a variety of different acts, but there must be an actual injury to the person bringing the suit for the court to find a nuisance. An injury could be financial or physical, and the person bringing a nuisance claim can ask for monetary damages or an injunction, which requires the person to stop doing the act that is causing the injury. One example of a nuisance is pollution from a factory that causes health issues for nearby residents.

                In the history of the law of nuisances, there was a defense called “coming to the nuisance.”  This defense was used by the defendants to keep people from moving to an area and claiming the factory or farm that had been there for years was now a nuisance. However, the “coming to the nuisance” defense is no longer allowed. Instead, state legislatures enacted laws, such as the Farm Nuisance Suit Act, to prevent people from moving from nonagricultural areas to agricultural areas and claiming that farms are a nuisance.

                The Illinois Farm Nuisance Suit Act states that if the farm has been in operation for more than one year and the farm was not a nuisance at the time it began operations, it shall not become a nuisance because of any changed conditions to the surrounding area. An example of changed conditions would be a person building a house by a hog operation. However, the Act does not protect against any negligent or improper operation of a farm or prevent persons with injuries from asking for damages for any pollution, change of waters of any stream, or any overflow of lands. If the defendant prevails, the Act provides that the plaintiff (the person suing the farmer or operation) has to pay the defendant’s court costs and fees, plus attorney’s fees, incurred in defending the lawsuit.

                Being sued can be stressful, especially if the person could obtain an injunction to shut down a farmer’s livelihood. An attorney can assist in matters related to nuisances and can defend nuisance lawsuits.

NEW TAX DEDUCTION FOR CERTAIN BUSINESSES

                The Tax Cuts and Jobs Act of 2017 made several significant changes to the individual income tax, including the addition of a new deduction that could help certain pass-through businesses save money on taxes. The Qualified Business Income Deduction (QBID) is effective for tax years beginning after December 31, 2017 and ending before January 1, 2026. In some circumstances, the deduction will be 20 percent of qualified business income from a trade or business within the United States.

                The QBID may be claimed by a taxpayer with qualified business income from a partnership, Subchapter S-corporation, estate, trust, sole proprietorship, and some rental activities. However, the deduction excludes Subchapter C-corporations. If the business is considered a specified service business, such as a business involved in health, law, accounting, consulting, financial service or any business where the main asset is the reputation or skill of one or more employees, then there are additional limitations to claiming the deduction.

                In addition, if the taxpayer’s taxable income is more than $157,500 individually or $315,000 for married filing jointing, then the deduction allowed is reduced. The reduction is based on the specifics of the taxpayer’s business, such as the amount paid in wages or basis of qualified property. If the business is considered a specified service business, then the taxpayer cannot claim the deduction if his or her income is over $415,000 for married filing jointly or $207,500 individually. For other businesses, a taxpayer may still be able to claim the deduction if his or her income are over these thresholds, but the deduction may be greatly reduced.

                The Qualified Business Income Deduction is new this year and can be complex depending on the business wanting to take the deduction. There are still a few unanswered questions regarding its implementation in certain cases. An attorney or tax preparer can answer questions about the QBI deduction and help you determine if you can take the deduction.

PET CUSTODY IS NOW SIMILAR TO CHILD CUSTODY IN DIVORCES

                Going through a divorce can be difficult, and when pets are involved, the process can be even more emotional and contentious. In the past when individuals went through a divorce and owned a pet together, the pet was awarded one person or the other. However, a new law in Illinois makes pet custody in divorces similar to child custody.

                The Illinois legislature added the new provision to the Illinois Marriage and Dissolution of Marriage Act, effective January 1, 2018. The provision applies to a companion animal but does not apply to service animals. The person who requires the services of the service animal is entitled to keep his or her service animal. In addition, the pet must be considered a martial asset, which means the animal was bought or adopted during the marriage. If the animal was adopted before the marriage, then this new provision does not apply, and the animal goes to the person who owned the animal before the marriage. If the animal was adopted during the marriage, then the judge will consider the well-being of the animal when deciding whether to award joint or sole custody or deciding responsibility for the pet’s care.

                The judge will consider factors such as: who cares for the animal from day to day; who buys the pet food; who gets the animal medicine or vaccinations; whether the pet was a gift to the child; whether the pet will follow the child; and any other factor that may be important for the care of the animal. The court may also consider any separation issues the pet may have regarding the arrangement for his or her custody. This determination is similar to how courts determine custody arrangements for children.

                If the parties do not want a judge to decide the ownership of a pet, they can still come to an agreement outside of court. However, parties should consider including their agreement related to pet care and custody in the divorce decree or stipulation agreement. A qualified attorney is recommended for all aspects of a divorce, including settlement agreements or disputes with pet custody claims.

GUARDIANSHIP UPDATE: RELATIVES CAN PETITION THE COURT FOR VISTITAION RIGHTS

                Spouses, adult grandchildren, parents and adult siblings may have a legal recourse now to seek visitation if the guardian does not allow them. Effective January 1, 2019, the Illinois legislature amended the Probate Act of 1975 to allow other relatives to ask the court for visitation rights.

                A guardianship is when the court appoints an individual (called the guardian) to take custody of the individual (the ward) and make necessary decisions regarding the ward’s support, care, comfort, health, education and maintenance. A guardian may also take responsibility of the ward’s money and property if it is appropriate. A guardianship is only ordered if the court determines the person with the disability lacks the capacity to make or communicate responsible decisions regarding his or her care or is unable to competently manage his estate or financial affairs because of that disability.  The court will decide the powers of the guardian, and the guardian must follow court procedures to prevent any abuse of power. One such power is the ability to decide who may visit the ward.

                However, there are instances where a guardian unreasonably prevents relatives from visiting the ward. Prior to the amendment of the Probate Act, only the ward’s adult children were able to ask the court to order the guardian to permit visitation. The amendment now allows the ward’s spouse, adult grandchildren, parent or adult sibling to ask the court to order the guardian to allow visitation. The court will consider the possible risks and benefits, consequences, necessity, nature of the visitation, and other information will be weighed in determining whether the guardian’s decision to deny visitation was in the ward’s best interest. If the court decides the decision was in the ward’s best interest or made reasonably, the court will likely not order the guardian to allow visitation. In addition, if the ward has capacity to evaluate and communicate his or her decisions regarding visitation by relatives and does not want them to visit, the court will not allow visitation. Each situation is different, and an attorney can assist with matters related to visitation rights in guardianships or establishing a guardianship.

A STATE AGENCY CAN INVESTIGATE MISUSE OF A POWER OF AUTHORITY

                A Power of Attorney for Property is an important legal document that allows an individual (the principal) to appoint a person (called the agent) to make financial decisions for him or her. Some of the categories of authorized powers are real estate transactions, financial institution transactions, insurance transactions, tax matters, business operations and tangible personal property transactions. The Power of Attorney for Property can be useful in many situations, such as when you are on vacation and need bills paid or you become medically ill and need someone to handle matters for you. In some circumstances, a Power of Attorney can eliminate a need for a guardianship if the principal loses the capacity to make his or her decisions. A power of attorney the person chooses their agent, whereas a court chooses the guardian.

                An agent must follow certain duties to ensure the agent is not improperly using the principal’s money for his or her own personal use. An agent has a responsibility to act in the best interests of the principal and is required to keep a record of all receipts, reimbursements and significant actions taken under his or her authority. Certain individuals and agencies can request the agent’s records of the transactions. Under the Illinois Power of Attorney Act, if the agent does not produce his or her records within 21 days, the individual or agency can ask the court to order the agent to produce the records. If the court finds the agent’s failure to produce the records was in bad faith, the court may order the agent to pay reasonable costs and attorney’s fees plus other relief that may be appropriate.

                The Illinois legislature amended the Illinois Power of Attorney Act to include a representative of the Office of the State Long Term Care Ombudsman as one of the few persons who may request an agent’s records of receipts, disbursements, and significant actions. The Illinois Department of Aging has a Long-term Care Ombudsman program that investigates complaints about elder abuse. If an agent were financially exploiting a principal over 60 years old or a person with disabilities, then a person could call the program and file a complaint. An investigation would be conducted, and further actions could result if the investigation does show bad faith by the agent.

                Even though the Long- Term Care Ombudsman program is for elderly or disabled individuals, there are other ways to stop an agent from being able to continue to exploit persons who are not elderly or disabled. Please consult an attorney to discuss the options or to obtain a Power of Attorney for Property.

LANDLORDS AND TENANTS SHOULD KNOW ABOUT THE SECURITY DEPOSIT RETURN ACT

                Most landlords collect a security deposit at the beginning of a lease in case of damage or repairs that need to be done after the tenant moves out. However, a new law for security deposits in Illinois places additional duties on residential landlords to use the deposit and reduced the damages a landlord can deduct from a security deposit. The Security Deposit Return Act (“The Act”) became effective on July 31, 2018. The Act applies to landlords who rent residential property containing 5 or more units.

                This new law places duties on a landlord before he or she can withhold any part of the security deposit. A landlord must provide the former tenant with an itemized statement of the damage allegedly caused to the property and the estimated or actual cost for repairing or replacing each item on the statement. The statement must also include the receipts or copies of the receipts for the repair or replacements. This statement must be sent to the former tenant within 30 days of the date the tenant vacated the property. It can be delivered by personally giving the statement to the tenant, by postmarked mail directed to his or her last known address, or by electronic mail to a verified electronic mail address provided by the tenant. A landlord can include repairs he or she did, but the amount must be the reasonable cost of his or her labor. If the landlord does not send the statement within the required time period, the landlord has 45 days from the date the tenant vacated the property to return the full deposit to the tenant.

                Some written leases provide for a predetermined amount to be paid out of the security deposit for cleaning, repair or replacement of an item at the end of the lease term. However, under the Security Deposit Return Act, these types of costs in the lease have to be for damage beyond wear and tear, and the cost has to be reasonable to restore the residence to the same condition as when the lease began.

                If a landlord fails to follow the Act’s requirements, the landlord could be liable for an amount equal to twice the amount of the security deposit plus court costs and reasonable attorney’s fees. Landlords or tenants with questions about the new law should contact an attorney to discuss all of the details.

NEW ILLINOIS LAW CHANGES

                The Illinois legislature amended the Vital Records Act to permit death certificates having a veteran designation. The Vital Records Act sets forth the requirements for various certificates and forms. Effective January 1, 2018, death certificates can now include a deceased’s veteran status, the branch of military he or she served in, and the period of time he or she served in the military. The law also allows a past death certificate to be amended to include the veteran’s information.

                The Volunteer Emergency Worker Job Protection Act was amended to include a new provision regarding calls and texts. The Act states that private or public employers cannot terminate a person who is a volunteer emergency worker when the person is absent from or late to his or her employment in order to respond to an emergency prior to the time the person is supposed to start work. Effective January 1, 2018, in certain circumstances employers cannot discipline volunteer firefighters or EMS personal for responding to an emergency call or text. However, the provision is subject to an employer’s written cell phone policy or guideline. A volunteer emergency worker should discuss with his or her employer about its cell phone policy. 

                Effective January 1, 2018, farmers who grow row crops on land next to a county highway may contract with the county board to leave a few standing rows of crops to act as snow breaks. The county will choose the places where drifting snow has been an obstruction to traffic in the past. The law states that the contract price shall be the higher of the market price for that crop in the local area or the current Commodity Credit Corporation target price. In addition, the county may choose to pay an inconvenience fee, which would be at least 10% of the contract price.