Over the course of your lifetime, you will have made millions of decisions for yourself. Most people do not like the idea of turning over the decision-making authority to someone else; however, the reality is that at some point it may be necessary. By planning ahead, you can choose to whom you hand over that authority instead of letting a court decide through a guardianship petition. The Illinois Quad City probate attorneys at Nash, Nash, Bean & Ford, LLP explain what you can do now to avoid a guardianship down the road.
What Is Guardianship?
Guardianship is a legal process that grants the Guardian authority to care for and make decisions on behalf of an incapacitated person. An incapacitated person is someone with a clinically diagnosed condition that leaves them unable to make or communicate decisions affecting their physical health, safety, or self-care. To gain guardianship over someone, a petition must be filed with the appropriate court and the request evaluated by a judge after a hearing.
Why Should I Be Worried about Avoiding Guardianship?
If you are the subject of a guardianship petition, referred to as the “ward,” you do have the right to object to the appointment of a Guardian and/or the choice of Guardian. Once a Guardian is appointed, however, that person (or agency) will have a considerable amount of authority over you and your life. Moreover, if you are truly incapacitated, you may not be in any position to meaningfully object to the appointment of a Guardian. In reality, the only opportunity you have to control the appointment of a Guardian is to plan ahead so that one is not needed.
Tools That Can Help Avoid Guardianship
There are several estate planning tools and strategies that can be incorporated into your overall estate plan that can help you avoid becoming the subject of a guardianship petition later on in your life, including:
- Power of attorney – a Power of Attorney (POA) is a legal document that allows you to grant someone of your choosing (your “Agent”) the authority to act on your behalf in legal matters. A POA can be general or limited. With a general POA, your Agent has almost unfettered authority to act on your behalf whereas with a Limited POA the Agent only has the authority specifically enumerated in the POA document. If the POA is a durable POA the authority granted to your Agent will survive your incapacity.
- Revocable living trust — a revocable living trust is an excellent incapacity planning tool because it allows you to appoint yourself as the Trustee of the trust and appoint someone of your choosing as the Successor Trustee. You then transfer assets into and out of the trust throughout your lifetime, maintaining the ability to control and manage those assets as the Trustee. If you become incapacitated, your designated Successor Trustee takes over control of those assets automatically, without the need for court intervention.
- Advance directives – An advance directive is a written statement of a person’s wishes regarding medical treatment that is created and executed to ensure those wishes are carried out should the person be unable to communicate them to a doctor. Illinois recognizes two types of advance directives. The first, known as a Statutory Short Form Power of Attorney for Health Care, allows you to appoint someone as your Agent to make decisions for you in the event you are unable to make them yourself because of you incapacity at some point in the future. Your Agent will have the authority to do things such as consent, refuse to consent, or withdraw consent to medical treatment on your behalf. A Living Will is the second type of advanced directive offered in Illinois. A Living Will allows you to direct that, if you are suffering from a terminal condition, death-delaying procedures will not be utilized to prolong your life.
Contact Geneseo Probate Attorneys
For additional information, please download our FREE estate planning worksheet. If you have questions or concerns regarding guardianship, contact the experienced Geneseo probate attorneys at Nash, Nash, Bean & Ford, LLP by calling 309-944-2188 to schedule your appointment today.