One of the most difficult decisions that families can face is the decision to file a Petition for Appointment of a Guardian. This becomes necessary when a loved one cannot make their own medical decisions or manage their finances. Most often, the person for whom the family is seeking guardianship is an elderly parent or relative. However, it can also be someone who has lost capacity because of an accident, illness or addiction. You can also have a guardianship over a minor or an adult suffering from mental illness. In this post, we explain what guardianship is, who can be a guardian, as well as some ways to prepare in advance to avoid guardianship.
What is Guardianship?
Guardianship is a legal proceeding through which the court appoints a guardian to make decisions for a person who does not have the mental capacity to manage their healthcare or finance decisions.
Basic Types of Guardianship
In Illinois, you can have a guardianship of the person, guardianship of the estate or guardianship of both the person and the estate. A guardian of the person is appointed when an individual with a disability cannot make or communicate responsible decisions regarding his or her personal care. The guardian can then make decisions on behalf of the incapacitated individual including decisions about medical treatment, where they live, benefits, and other needs. A guardian of the estate is appointed when an individual is unable to make or communicate responsible decisions regarding the management of their finances and/or property. The guardian of the estate is charged with overseeing financial matters on behalf of the incapacitated person and is authorized to make decisions about their funds and property.
Illinois courts also appoint Limited Guardians of the Estate and Person, when a person needs some help with decision-making but has other powers reserved to them, where they can act on their own.
Who Can Be A Guardian and How is a Guardian Appointed?
A person can be a guardian if they are over the age of 18, a legal resident of the United States, of sound mind and is not a person with a disability under the law. Additionally, the proposed guardian must not have been convicted of a felony unless after reviewing the facts of that offense, the court finds appointing the guardian to be in the best interest of the person with a disability. However, the court will not appoint a person a guardian if they have been convicted of a felony involving harm or threat to a child, elderly person or a person with a disability. That said, the individual still needs be found disabled by the court through proceedings during which the court will determine whether the individual is in need of a guardian and whether the proposed guardian is suitable.
Is Guardianship always necessary?
Though guardianship is an effective court process to ensure that your loved one is taken care of, one way to potentially avoid needing guardianship is by ensuring you have power of attorney documents. A Power of Attorney for Health Care and a Power of Attorney for Property give your agent many of the same powers as a guardianship, without court involvement.
While petitioning the court to be a Guardian over a loved one can be hard and oftentimes invoke strong emotions, sometimes it is the only way to ensure your loved one is safe and financially secure. The Law Office of Kate Curler’s attorneys takes a holistic approach to come up with the best plan for the person under guardianship to preserve as much independence for the senior or incapacitated person as possible, as long as they and their assets are safe.
This post is meant to give you basic information about Guardianship in Illinois. If you have questions about Guardianship, please contact Attorney Lauren Kaplan at lkaplan@curlerlaw.com or (312) 952-1077 for a free consultation.
The contents of this blog post are intended to convey general information only and not to provide legal advice or opinions.