Michael Helfand, Author at Illinois Lawyers

Can a store detain you if they suspect shoplifting?

By Michael Helfand
on April 24, 2012

Posted In Criminal Defense in Illinois, Did You Know?

Generally, yes. When a store manager or security guard suspects someone of trying to steal something or conceal it with the intent to steal, they can detain the person. They can look through the person’s bags and even hold them until police show up (if they decide to call the police).

The law is vague on how far a store can go. It says that the store must have reasonable grounds to believe you were stealing and then they can detain you in a reasonable manner for a reasonable amount of time.

I think they’re supposed to actually see you take the item from their shelves or wherever it’s kept on display. Often, people bring merchandise from other stores with them, or have something on them that they purchased at that store on a different day. They’re also supposed to actually see you conceal it and walk out of the store or at least past the point where you’re supposed to pay. Ultimately, it’s your word against theirs.

We hear from people who want to sue the store or the person who held them for doing so without any basis. Being detained by store security is not an arrest by police, so all those constitutional rights aren’t at issue. If they follow the law on detaining you in a reasonable way, even if you’re completely innocent, you won’t be able to sue for false arrest or illegal detention.

And, unfortunately, even if the detention IS unreasonable, it’s most likely not a lawsuit. Lawsuits are based on physical injury or monetary loss. It’s going to be hard to prove you suffered either. Attorneys who file lawsuits on behalf of injured clients only get paid if they win, and their fee is a percentage of what they get for their clients. If there isn’t a dollar amount at stake, they’re not going to waste their time on the case.

There are limits, of course. You can’t be detained for a super long time. And a store owner or security guard can’t be overly physical with you. But unless something egregious happens to you, a lawsuit isn’t the way to go.

Many retailers these days recover losses from theft by sending out civil demand letters. They hire a law firm to do this. The letter says you have to pay a couple hundred dollars, or else they will sue you. These are legal, but the threats might be empty. It’s often not worth it to file a lawsuit to collect such a small amount.

So it’s generally a good idea to cooperate and not fight if you are detained. The security guard will probably let you go without calling the police, so long as you didn’t try to steal anything major and you don’t cause trouble. If police are called, your rights kick in and you can (and should) get an attorney before answering questions. And in both cases, it’s a bad idea to sign a confession without legal advice.

I’m Not The Suing Type Either

By Michael Helfand
on March 27, 2012

Posted In Litigation

One of the biggest reasons people are hesitant to hire a lawyer in Illinois is that they “aren’t the suing type.” It’s almost as if people feel that they need to apologize for calling a law firm to seek help.

I’m not sure what the suing type is. I suppose my callers are thinking of others who they think will sue anyone for any reason. I suppose those people are out there, but I hardly ever see them and I’ve talked to more than 200,000 people in 11 years of running our Illinois lawyer referral service.

I’m certainly not the suing type. I once had to sue a landlord to get my security deposit back, but that was in the 1990’s. I did file a lawsuit in 2004 against the guy that sold me my Evanston house without disclosing that any time it rained sewage would seep in to the basement. Other than that I’ve been lawsuit free for eight years.

So I don’t look for trouble, but when I’m wronged and can’t work things out on my own, like anyone else I have to decide if going to court is worth it.

I would assume the suing type will sue anyone, any time. That’s not a good long term strategy because if you do ever have a legitimate case, your credibility would be hurt because you are so litigious.

If you’ve been wronged, you just need to figure out if getting a lawyer is worth it to you. But never feel the need to apologize. When you are seeking legal help for the right reasons you are doing exactly what you should do.

FAQ guardianship of an adult

By Michael Helfand
on March 5, 2012

Posted In Illinois Family Law

Guardianship, when we’re talking about an adult, is usually set up in cases of age or illness. You might want guardianship over an elderly parent who suffers from dementia, for example. Guardianship isn’t a quick solution. You will have to go to court and ask a judge, who will want to hear from doctors, as well as any family members who object. Here are some answers to a few questions I often get on this topic:

How do I know when it’s time for guardianship?

If a person can no longer handle their financial affairs or make sound decisions about their care, it might be time to seek guardianship. (If they are still of sound mind, consider talking to them about establishing powers of attorney.) There are two types of guardianship, and you can ask the court to grant you one or both. There is guardianship of the estate, which allows the guardian to handle the ward’s finances, and there is guardianship of the person, which is for things like health care and living arrangements.

Do I have to go to court?

Yes. You have to file documents with the court, including a petition requesting guardianship. There are a lot of steps, which include time for an object from the person you’re seeking guardianship over (called the ward), as well as objections from family members. The judge will want the opinion of an expert (doctor, psychiatrist, etc.) and will consider all facts before making a decision in the best interest of the ward. Because guardianship takes away significant legal rights, the court does not award it without good reason.

Do I need to hire an attorney?

We usually recommend it, because there are a lot of hoops to jump through. An attorney can be especially useful if the ward objects or if family members disagree about who should be named guardian. It’s not impossible to handle on your own, but it can get messy.

Is there any way to set this up ahead of time?

Most attorneys would recommend having powers of attorney in place before a person becomes incapacitated or mentally incompetent. A person must be well, mentally speaking, when signing a power of attorney. If done properly, they automatically put someone else in charge of financial affairs and health care (two separate documents). There is no need to go to court when the time comes to take over that person’s affairs. The main thing to be aware of with a power of attorney is that it has to be someone you trust. And a power of attorney signed under intimidation or force will not be valid.

Legal resolutions for 2012

By Michael Helfand
on March 1, 2012

Posted In General

It’s never too late to make some new year’s resolutions. If you’re tired of resolving to lose weight, or get organized, or whatever other promises you make to yourself every year, try these legal resolutions for a change. They won’t all apply to you, but if they do, it might be time to do something about it.

– Take another look at your estate plan. If you have an outdated estate plan, get it updated as soon as possible. We’d argue that an outdated plan is worse than no plan at all. If you’ve experienced a major life change, such as divorce, marriage, or having a child, then your plan likely needs an update. If you don’t have an estate plan, it’s time to get one. A simple will, perhaps a trust, and powers of attorney are in a typical package. At the very least, properly execute a power of attorney (one for healthcare and one for finances). You can get these forms free online. You also may want to fill out a living will or advance directive (which tells doctors whether you want to be kept alive on life support). I wouldn’t recommend doing your own will or trust, but the other three documents I mentioned aren’t as complicated. If you have legal advice while filling them out, great. But make sure you don’t pay a lot because they’re fairly straight forward.

– Pay those parking tickets. These can add up and lead to worse than the fine you face now. If you accumulate too many unpaid parking tickets, your license can be suspended. If it gets this far, it’s a pain to take care of. But what’s worse is if you get caught driving on a suspended license. Even if you didn’t know your license was suspended (they notify you but that notice doesn’t always get to the right person), you’re still in the same trouble. Driving on a suspended license is a crime. Jail time isn’t likely if you have a clean record, but it’s certainly on the table. If you can’t afford to pay your parking tickets, ask about payment plans.

– Get that child support you’ve been waiting for. If you don’t have a court order, that will be your first step. Once you have that order, you can enforce it. It can be daunting, especially if the other parent is hiding, lives out of state, makes their money under the table, etc. However, these are common situations, which child support collection attorneys are familiar with. If you can’t afford to hire an attorney to get you the child support you’re owed, try going through the state. There is an agency that helps parents collect. It’s not as quick, but it’s worth a try if it’s your only option. There are no guarantees either way, unfortunately, but I hate to see people give up before trying. It’s money for your child and it may be possible to get what you’re owed, including past payments that you never received.

– Check your record. Look for lingering arrests, cases, convictions, etc. You may not be able to clear up everything, but do what you can. In some cases, you can clear up everything. It just depends on what you’ve got. There are two ways to clean up your record – you can seal it or expunge it. Expunging your record (or certain things on it) is the better option because it’s completely erased. Sealing your record is still good, because it will hide your record from the general public at least. Employers can’t see a sealed record when they do a background check, for example. Start by contacting the police department where your case originated or where you were arrested and request a copy of your record.

5 Tips for Taking Your Child out of Illinois in a Custody Situation

By Michael Helfand
on January 25, 2012

Posted In Five Tips

Whether you have shared custody or sole custody of your child, one parent generally cannot make the decision alone to move out of the state of Illinois with the child. Here are some factors to consider, if you are wanting to make a move.

1. A petition should be filed with the court asking permission.

If the child has been living in Illinois, generally that is where the petition would be filed. You would be asking the judge to grant you the right to remove your child from the state. If the other parent objects, you would have the responsibility to prove your case as to why the change is right. This could take time, because both sides need adequate time to prepare and present their arguments. So it is not a decision that can be made at the last minute before you want to be settled somewhere else.

2. The judge will base the decision on what is in the best interests of your child, taking many factors into account.

Regardless of how badly you may feel that you need a change, or another state is more desirable, if it is not overall in the best interest of your child, you may not be able to move out of the state. The judge will look at the specifics of your situation and the proposed move, in light of factors such as: whether the move will enhance the quality of life for you and your child, and in what way; whether your move is based on bad motives, rather than a positive plan; whether the objection to the move is based on bad motives; what the effect will be on the other parent’s visitation, and if it is possible for an appropriate visitation schedule.

3. A solid plan for a good, enhanced quality of life will go a long way to justifying the move.

The judge will look at many aspects of the new life you are proposing in the new state. You can show specifics about the community, school system, other family nearby and other support system, and the positive effect it will have on your life that your child will also benefit from.

4. Problems can arise if paternity has not been established.

If the parents have not been married, and paternity has not been established, it is difficult for the father to prevent the move. But that does not necessarily mean that the mother is free and clear to move with the child. The father could take the steps to establish paternity if he knows you may be planning to move, and could then hold it up. Also, if you move first, and then paternity is established, you may have to return to Illinois to present your case to the judge.

5. A short vacation out-of-state is generally not so complicated.

In most situations, there does not need to be a complicated procedure just to take a reasonable vacation outside of Illinois. Usually, with notification to the other parent as to where and when you will be going, along with contact information for the child, there isn’t a problem.

Michael Helfand