ILLINOIS GUARDIANSHIP Understand What It Means to Be a Guardian As Well As the Illinois Guardianship Process So You Can Protect Your Loved One Who Is Unable to Properly Care for Himself or Herself
ROBERT N. NASH ILLINOIS ESTATE PLANNING ATTORNEY
There may come a time in your when you realize parents, grandparents, or other adult loved one is unable to properly care for himself or herself. In order to protect your loved one it may be necessary for you to intervene by seeking guardianship over the individual. The decision to petition for guardianship is never an easy decision to make; however, if you fail to make the decision your loved one could be increased risk of physical harm or financial victimization. Understanding more about what it means to be a guardian as well as the Illinois guardianship process may assist you in making your decision.
WHAT IS A GUARDIAN? In Illinois there are two basic types of guardians – a guardian of the person and a guardian of the estate. A guardian of the person is someone who has authority or power over decision affecting the ward himself or herself. The ward is the person in need of protection. Decisions you might make as a guardian of the person include where the ward will live, what doctor the ward will treat with, and with whom the ward may communicate. A guardian of the estate has authority over the estate of the ward. As guardian of the estate you might make decisions such as which bills to pay for the ward, what investments to make, and what property to buy or sell. In most cases, if you appointed as guardian it is a permanent appointment; however, you could be appointed as a temporary guardian in an emergency which lasts no longer than 60 days.
Illinois Guardianship
www.nashbeanford.com
2
WHO CAN BE A GUARDIAN? In the State of Illinois, you may be appointed as a guardian if all of the following apply: You are 18 years or older You live in the United States You are of sound mind You are not disabled yourself You do not have a felony on your record OR You have a felony on your record, but it is in the disabled person’s best interest to appoint you anyway.
WHO NEEDS A GUARDIAN? Ultimately, a court will decide whether or not your loved one needs a guardian. In making the decision, the court will attempt to determine if the proposed ward is disabled and/or incapacitated to the extent that a guardian is needed. Guardianship over the person is warranted if your loved one “lacks sufficient understanding or capacity to make or communicate responsible
In order to protect your loved one it may be necessary for you to intervene by seeking guardianship over the individual.
decisions regarding the care of his or her person." Guardianship over the estate is used when the proposed ward “is unable to manage his estate or financial affairs".
Illinois Guardianship
www.nashbeanford.com
3
HOW DO I APPLY TO BE A GUARDIAN? Becoming a guardian is often a rather long legal process. Although there is no legal requirement that you retain the services of an estate planning attorney to represent you throughout the process, thee Illinois Guardianship and Advocacy Commission indicates that “the advice of legal counsel may be beneficial.” Though no two guardianship proceedings are the same, the basic steps involved in seeking guardianship include: 1. Physician Evaluation – in order to be appointed guardian over someone the proposed ward must be evaluated by a licensed physician first. The report should include the nature and type of disability; an analysis of the patient’s mental and physical condition; an opinion regarding the need for a guardian; and a recommendation regarding the most suitable living arrangement for the proposed ward. The physician’s report must be filed with the court, usually with the petition. The judge will review the report and use the findings when determining if the proposed ward is in need of a guardian. 2. Preparing the Petition – a guardianship proceeding begins by filing a petition for guardianship in the appropriate court.
Illinois Guardianship
www.nashbeanford.com
4
3. Notice and Summons – after the petition is filed it must be properly served, along with a summons, the proposed ward. Other “interested persons” are also required to receive notification. “Interested people”, for purposes of a petition for guardianship include people such as a spouse, adult children, and other close relatives. 4. Appointment of Guardian Ad Litem – a guardian ad litem, or GAL, will be appointed by the court to look after the best interest of the proposed ward. The GAL is either an attorney or someone with special training. The GAL will explain the petition and the guardianship process, to the extent possible, to the respondent (the proposed ward) and try to determine how the respondent feels about the petition. The GAL will then report to the court and/or testify at the hearing. 5. Hearing – the court will set a hearing date to hear testimony and/or review evidence submitted in the case. If the respondent does not object to the appointment of a guardian the court may not require testimony. If an objection has been filed, either by the respondent or another interested person it may be necessary to provide testimony to convince the judge of the need for a guardian as well as that you are a suitable guardian. 6. Appointment – if the judge is convinced that the respondent is in need of a guardian, and that you are a suitable guardian, an official appointment will be made. The judge may appoint you to be guardian of the person, guardian of the estate, or both.
Illinois Guardianship
www.nashbeanford.com
5
WHAT POWERS WILL I BE GRANTED AS GUARDIAN? If the court appoint you to be a guardian for your loved one the court will specify which type of guardianship is granted as well as the extent of your powers. The court could grant you plenary guardianship if the court feels that the ward’s condition warrants a guardian who can make all necessary decisions, either over the person, the estate, or both. The court could also grant you limited guardianship if the court feels that the ward is capable of making some decisions himself or herself. If your guardianship is limited you will be informed what decisions you have the authority to make. Deciding to seek guardianship over a loved one is often a heart-wrenching decision; however, if you are concerned enough to be exploring the option chances are good that your loved one is in need of protection. Consult with your estate planning attorney for additional information or for answers to specific questions.
Illinois Guardianship
www.nashbeanford.com
6
REFERENCES Illinois Guardianship and Advocacy Commission, Guardianship Frequently Asked Questions Illinois Legal Aid, Getting Guardianship of a Disabled Adult Office of State Guardian, A Practitioner’s Guide to Adult Guardianship in Illinois http://money.cnn.com/2013/06/01/pf/executor.moneymag/index.html
Illinois Guardianship
www.nashbeanford.com
7
About the Author Robert N. Nash Robert N. Nash is a partner in the law firm of Nash Nash Bean & Ford, LLP. The law firm has offices in Geneseo and Moline, Illinois and conference facilities available throughout Northwestern Illinois. Mr. Nash chose the estate and business planning arena because he believes it provides a positive force in his clients’ lives. He practices preventative, rather than remedial law. Robert Nash focuses on all aspects of estate planning, including estate, gift and income taxes, trust and probate administration, real estate, and business. Nash Nash Bean & Ford, LLP www.nashbeanford.com Geneseo Moline 445 US Highway 6 East 5030 38th Avenue, Suite 2 Geneseo, IL 61254 Moline, IL 61265 Phone: (309) 944-2188 Phone: (309) 762-9368 Fax: (309) 944-3960 Fax: (309) 944-3960 Illinois Guardianship www.nashbeanford.com
8