The ability to care for one’s self is something most people take for granted, until they’re no longer able to do so. Some may not realize they need help, or do and don’t ask for it.
You may have a relative who is getting on in years and doesn’t realize they’re in need of assistance. They may have a mental illness, or simply be suffering from mental decline due to an advanced age. Incapacitation may come on slowly, or after a specific event, such as a stroke or other illness. One day you realize that something is wrong, and it’s time to take action.
The Guardian
A guardianship for an incapacitated person is similar to requesting guardianship for a child. With a child, the guardianship generally ends when he or she turns 18. With an adult, it may be for the rest of the adult’s life, or until he or she recovers from aa condition of incapacitation. His or her estate is included.
The guardian is usually a relative or close friend who can step in and see to the individual’s affairs including financial, social, as well as medical. Guardians can also make or change living arrangements. If there is no one available, a judge may appoint a public guardian, who will be paid out of the individual’s estate.
Who Can Become A Guardian?
Anyone can become a guardian. Although some guardians are attorneys, it’s not a requirement. To petition to be a guardian, you must be:
- Age 18 or older
- Be a US resident
- Be of “sound mind”
- Not be legally disabled (although blindness won’t prevent you from becoming a guardian)
- Have no felony convictions involving a threat or harm to a child
The individual will be called a “respondent” once a petition is filed with the court where he or she lives, or has property. If it is not filed in the correct court, it will be dismissed.
Petitioning The Court
Once you’ve decided to become (or assign) a guardian, you’ll need to petition the court. In your petition you’ll need to include:
- Your relationship to the respondent
- The name, DOB, address and other pertinent information of the individual
- The reasons for requesting guardianship
- The names and addresses of any current guardians, if applicable, including any agent for healthcare or financial responsibility for the individual
- The individual’s nearest relatives and the institution where the respondent lives
- The approximate value of the individual’s assets, properties and expected annual income, especially if the guardian will be handling their financial affairs.
- Your name, address, age, and your relationship to the respondent
- A physician’s report which details why establishing a guardian is appropriate. This report should include the individual’s disability, how it affects them and their responsibility, and why he or she cannot make competent, relevant decisions for themselves.
- This report should include any testing that’s been utilized to determine their condition, and include things like social skills.
- The report should be done within the prior three months of filing the petition, created and signed by a licensee physician and anyone else who assisted in preparing the report.
- If the respondent isn’t cooperative, the petition can be filed first and a physician’s report filed later.
If the individual is in Illinois, the petition should be filed in the proper county. For out-of-state filings, it should still be in the county where they have real estate and personal property.
When appointing a guardian the individual must be served with a summons informing them of the petition, the court date, where the hearing will be held and other relevant information. It should be delivered within 30 days after filing and 14 days before the hearing.
Alternatives to Appointing a Guardian
Guardianship is a more Draconian method of handling someone’s affairs, since it involves near-complete termination of their personal rights by court order. It may be necessary however, depending on the abilities of the respondent, in order to protect them on a daily basis.
There are less severe ways to take care of an individual, and they can be handled before the person is incapacitated. They include:
- Power Of Attorney (read more about this option at the link)
- A Living Trust, which you can read more about here, and about contested trusts here
- Representative Payeeship, if the incapacitated individual receives government benefits. Instead of a guardian, the individual would act as a “business manager,” using the funds to take care of the incapacitated person for rent/mortgage, utilities, food, clothing, transport, and any other expenses. Any leftover funds can be placed in an account separate from the payee, and in a savings bond or savings account.
An attorney experienced in guardianship proceedings and estate planning is the best way to ensure that everything is done correctly, and with respect to the soon-to-be ward.
Let Chicago’s Estate Planning Attorney Help With Guardianship
Whether you have a relative who is in need of help, or you’re concerned about becoming that incapacitated person, appointing a guardian is one option to ensure that your rights are protected and your wishes are carried out.
With more than 20 years of experience helping hundreds of individuals with their estate plans throughout Chicago, James C. Provenza & Associates will work with you and develop the plan that works best for your beneficiaries, For guardianship, power of attorney, or any other estate matters, speak with Chicago estate planning attorney James C. Provenza, by calling today at (847) 729-3939.
