Preparing for Guardianship

Sometimes we need our families to take care of things when we cannot make decisions for ourselves. And sometimes it becomes our turn to take care of our loved ones. Guardianship can help you help your loved ones in protecting what matters. Guardianship is a legal relationship in which one person is appointed by a Court to make personal and property related decisions for someone who no longer can make decisions for himself.

When a loved one cannot make proper decisions of their own, it is important to protect them from abuse, exploitation or neglect. At the same time you want to develop the maximum self-reliance and independence of the ward.

Basic requirements to consider are a medical examination by a licensed physician to determine mental incapacity. A petition needs to be filed in Court by an attorney. Subsequently a judge determines need for guardianship and appoints a guardian, with the same rights, powers and duties as parents have over minor children.

The Court will appoint a Guardian based on level of assistance needed, the preferences of the disabled person, as well as the proposed guardian’s ability to function in this capacity. In some cases there are several individuals seeking guardianship over the same person at the same time. The different types of guardianship for which the level of assistance needed by the disabled person determines the type of guardianship awarded:

Guardian of the Person
The Guardian of the Person is appointed when a disabled individual cannot take care of his/her own personal needs, such as medical care, residential placement and education.

Guardian of the Estate
The Guardian of the Estate is appointed when the disabled person cannot take care of his/her own financial needs, such as balancing a check book, paying bills, managing finances or maintaining real estate.

Limited vs. Full
The Court has the option of appointing a Limited Guardian rather than a Full Guardian in cases where the disabled person is not totally disabled and can make some decisions on his/her own. Otherwise, in a Full Guardianship, the disabled person is stripped of the ability to make any consequential decisions.

Plenary vs. Temporary
The Court has the option of appointing a Temporary Guardian when time prevents a Plenary Guardianship from being established. A Temporary Guardian typically has a limited range of authority granted to it by the Court and the appointment will expire automatically within 60 days.

Two Common Examples of Guardianship
1. A child who is born with Down’s Syndrome will not have the ability to make his/her own personal and financial decisions and will need guardianship at the age of 18.

2. A senior who develops dementia and over time loses the ability to make good personal and financial decisions for themselves will need a guardianship.

There are stipulations as to who may be appointed and act as a guardian, as well as requirements to establish guardianship. Once appointed, according to the Illinois Probate Act, the Guardian only has the authority granted to him or her by the Guardianship Court. The Judge will identify the scope of the decision making authority and request that periodic reports be made to the Court to identify the outcome of that authority granted.

Alternatively, if the disabled person is able to understand the consequences of signing a Durable Power of Attorney for Health Care and Durable Power of Attorney for Property, then authority can be given to someone to make personal or financial decisions.

Planning for someone who has a disability can be complicated. With proper planning, you will be confident that you’ve taken the best steps possible to protect what matters the most – your loved ones and the security for your family.

Linda Strohschein
Attorney
630-377-3241