Making a Statutory Custodial Care Claim under Illinois Law

Everyone has someone in their immediate or extended family who, because of advanced age or other physical or mental health troubles, requires more day-to-day intensive care.  This can be health care, assistance with performing daily tasks, help running errands, among many other things.  When a family member is the one that ends up providing this care, rather than hiring a sometimes costly third-party care provider, this commitment can take a toll on them as well.  The questions many people may have is what, if any, compensation or financial assistance is the caretaker entitled to for their services and sacrifice.


In situations such as this, the Illinois Probate Act provides that any spouse, parent, brother, sister, or child of a person with a disability who dedicates himself or herself to the care of the person with a disability by living with and personally caring for the person with a disability for at least 3 years is entitled to a claim against the estate upon the death of the disabled person.


The Probate Act requires that a caretaker’s claim must include facts regarding that person’s loss of employment opportunities, loss of lifestyle opportunities, and emotional distress that he or she experienced as a result of the care he or she provided to the disabled person.


However, the probate court may reduce any award if the caretaker and disabled person’s living arrangements were such that they were intended to and did also provide a physical or financial benefit to the claimant, as well as the disabled person.  In doing so, the court can consider things like whether the claimant had free or low-cost living arrangements as a result of their caretaking duties, whether the caretaking duties alleviated the need for him or her to work full time, any specific financial benefits received by the claimant as a result of his or her caretaking duties, and the proximity of care provided to the disabled person’s death.


Illinois courts will consider all of the specific facts alleged in a care claim in order to determine whether the statutory requirements have been met.  A claimant may need medical records, doctors’ testimony, and other evidence to support their claim.  Generally speaking, Illinois courts have been more likely to grant a claim if the caretaker had been living full-time with the disabled person, monitoring the disabled persons needs, and devoting his or her life to that person.


Illinois courts have denied a claim in instances where a son was providing care for his mother but did not lose out on job opportunities, had a lower cost of living as a result of sharing a home with his mother, and stated that he performed only cleaning, cooking, and other miscellaneous tasks for his mother.  That set of facts did not meet the statutory requirements for a claim.


The law provides certain guidelines to the claimant with respect to the award they can seek.  The claim amount must be based on the nature and extent of the decedent’s disability and, at a minimum (subject to assets available in the estate) should be as follows:


  1. If decedent was 100% disabled, $180,000;
  2. If decedent was 75% disabled, $135,000;
  3. If decedent was 50% disabled, $90,000; and
  4. If decedent was 25% disabled, $45,000.


If a caretaker is successful in their claim, the priority of their award, meaning if and when they will be paid, is still subject to the Illinois Probate Act.  Specifically, Section 10 of the Probate Act provides that all claims against an estate are divided into classes that determine in what priority they are paid.  The classes enumerated under the law are as follows:


  1. First paid: Funeral and burial expenses, expenses related to administration of an estate, and statutory custodial claims.
  2. Next paid: Surviving spouse or child award.
  3. Next paid: Debts due to the United States.
  4. Next paid: Money due to employees of the decedent not to exceed $800 for each claimant that provided services within 4 months of death;
  5. Next paid: Money and property received or held in trust of decedent that cannot be identified or traced;
  6. Next paid: Debts due to the State of Illinois or any county, township, etc;
  7. Next paid: All other claims. This could include secured and unsecured debt, among other things.


As one can see, the Illinois Probate Act places a high value on these caretaking responsibilities and therefore they are the first priority of claims to be paid out of an estate’s assets.


The custodial care claims are fact intensive and they must meet certain criteria to be valid, accordingly, it is important to consult an attorney about whether or not a potential claim might be successful.


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