Illinois Elder Law Guardianship

If a person becomes incapacitated and does not have a durable power of attorney, a court must appoint a guardian or conservator to manage that person's financial affairs and make all decisions. Any decisions made by the guardian must be approved by the court. That is why it is so important in estate planning to have a power of attorney for healthcare and one for property. A person can designate a loved one or trusted friend to make decisions in the event of disability.

When guardianship is necessary, Carol Nolan can assist with all court filings and legal proceedings.

The Illinois Probate Act,  Guardians for Disabled Adults, provides for the adjudication of disability, the appointment of a guardian of the person or estate, and court oversight of asset management personal decisions. 

Guardianship proceedings begin with the petition for guardianship filed by an interested person.  A guardian ad litem appointed by the court, represents the best interests of the alleged disabled person, conducts an investigation, reports to the court and makes a recommendation either for or against the guardianship.  The alleged disabled person is entitled to a jury trial on the issue of incompetence. 

Upon adjudication of incompetence, the appointed guardian is required to file a report with the court on an annual basis concerning the person and estate of the ward.  Residential placement of the ward requires court approval, and the court reviews all expenditures.

The advantages of guardianship include court oversight of the person and estate, a ready forum to resolve disputes, and procedural safeguards to the determination of disability.   Family members often view the court's supervision as welcome, and that may mitigate allegations against the guardian as opposed to that against agents under powers of attorney.  Unless waived, the guardian is required to post a surety bond to protect the ward's assets. 

Disadvantages of guardianship include the court costs, legal fees, probate bond premiums, and the requirement of providing an annual report of the person and estate to the court (which may be seen as a disadvantage by the guardian but an advantage by other family members).  Probate guardianship proceedings are also public.

[ top ]

Related Articles:

INCOMPETENCE IN ILLINOIS: Powers of Attorney-Living Trusts-Guardianship