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posted: 11/3/2013 1:00 AM

Siblings worry dad's "friend" is now legal tenant

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Q. I always enjoy reading your column in the Daily Herald and find it very helpful and informative. I have a question I hope that you can shed some light on.

My mom passed away eight years ago. After her death, a woman "befriended" my dad (who is now 81) and has since helped herself to more than $100,000 of my parents savings. My dad had felt sorry for her and her daughter and has willingly bought them a car and paid for many things, all in the hopes that they just "get on their feet."

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For the last four years, they have been living in my dad's home. They have never paid rent or utilities and have a food stamp card. Although he knows they are using him, he can't bring himself to evict them. Last year when I ran a credit check I found that the daughter had him cosign for two student loans and they opened up four credit cards in his name and rang up $25,000 worth of debt. When confronted, my dad took money out of a retirement account to pay off all the debt and refused to press charges against them, not wanting to "ruin" the daughter's life. This has been, as you can imagine, very stressful for my brother and I.

My question is this: When my dad dies, what is the procedure to evict them? Am I able to do so immediately or do they have a certain time frame to leave that I have to abide by? As I said they have never paid any rent and there is no lease. I would like to change the locks immediately and remove their belongings. I want to know what the law says regarding my rights and also if they have any rights in this situation. I am concerned that they would damage my dad's home out of spite as we have had numerous confrontations over what I see as elder abuse. They currently owe my dad $4,000. Can I sell their belongings to cover this debt?

The home is in a trust. My brother and I are co-trustees of this trust. The woman has badgered my dad to marry her over the years, although he doesn't want to. I was concerned of course that if she somehow convinced him to get married she would be entitled to half of my dad's assets. In order to protect his home and life savings (what remains), he agreed to remove himself as trustee off his own trust and place myself and my brother as co-trustees. I hope taking this step will be enough protection for both my dad and us as well.

Thank you for your help in answering these questions. I have had sleepless nights worrying about how this will end.

A. As you can probably imagine, your situation is not uncommon.

The Illinois Elder Abuse and Neglect Act directs the Illinois Department on Aging to establish an intervention program to respond to reports of alleged elder abuse, neglect and financial exploitation of older adults and to work with the older adult in resolving the abusive situation. The program provides services to people over the age of 60 who may be victims of abuse as described above. If elder abuse is suspected, calls can be made to the IDOA hotline at (800) 252-8966, 8:30 a.m. to 5 p.m. Monday through Friday (voice and T.D.D.), or to (800) 279-0400 evenings, weekends and holidays. Obviously, you should probably discuss this with your father first before contacting them.

Now, to address the issue as to what occurs once your father either passes away or can no longer remain at his home. It appears from your letter that you and your brother direct the trust that owns the property. Accordingly, you have the power to take whatever action you deem necessary in regards to this property.

The threshold question here is whether the woman "friend" and daughter are guests of your dad or tenants. Given they don't pay rent, that sounds like guests. However, I could see them arguing that they paid "rent" by giving your father the care he required. This also is not an uncommon situation. If a judge bought that argument, they might be considered tenants and you would be required to evict them the same way any owner would be required to evict a tenant. In your case, that would probably mean giving them a 30-day notice to vacate. If they failed to leave after 30 days, you could file an eviction lawsuit against them in the county where the property is located.

If you took the position that they were guests, you could simply demand they leave. If they fail to vacate the property, you would contact the police. Given the fact that they resided there for four years, however, I could see the police taking the position that this must be resolved through the court system.

Contact a real estate attorney for further details. You may also wish to consult with a tax specialist as conveying the property to you and your brother may not be in your best financial interests, though, given the facts, I certainly understand why you took this action.

• Send your questions to attorney Tom Resnick, 345 N. Quentin Road, Palatine, IL 60067, by email to tdr100@hotmail.com or call (847) 359-8983.

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