If you are an adult child with a parent who is suffering from Alzheimer’s or another form of age related dementia, you are likely wrestling with a number of difficult decisions – and they won’t get any easier with time. Eventually, you may reach a point at which you are faced with the need to consider petitioning for guardianship over your parent. Making the decision to seek guardianship over a parent can be a heart-wrenching decision because it often seems as though you are taking away a parent’s autonomy. To help you decide if, and when, guardianship is the right choice, the elder law attorneys at Nash, Nash, Bean & Ford, LLP explain what being a Guardian entails and what to expect during the guardianship process.
What Is Adult Guardianship?
When a person reaches the age of majority (18), the law presumes that he/she is capable of making decisions and effectively holds the individual responsible for the consequences of those decisions. Sometimes, however, an adult is not mentally capable of making sound decisions. Sometimes this is because of disability that was present from the time of birth or early childhood. At the other end of the spectrum, many adults lose their decision-making capacity as a result of age related conditions such as Alzheimer’s. When that happens, someone may need to step in and make decisions for the individual to prevent injury or victimization. Adult guardianship is the legal term used to describe a relationship wherein one adult is granted the legal authority to make decisions for another adult who has been adjudicated, by a court, to be disabled, meaning that the individual is unable to safely make decisions and/or control his/her own finances.
When Is Guardianship Warranted?
Guardianship is considered the option of last resort because of the restrictive nature of a guardianship. Once a Guardian has been appointed, the Ward (disabled person) does not retain the ability to exercise control or make decisions. Consequently, courts are reluctant to grant a guardianship without a clear showing of the need for one. In addition, the court will only grant a Guardian as much authority as is necessary to protect the Ward. In the State of Illinois, there are two basic types of guardianship, including:
- Guardian of the person — appointed by the court when a disabled individual cannot make or communicate responsible decisions regarding his personal care. This guardian will make decisions about medical treatment, residential placement, social services and other needs.
- Guardian of the estate — may be appropriate when a disabled person is unable to make or communicate responsible decisions regarding the management of his estate or finances. The guardian will, subject to court supervision, make decisions about the ward’s funds and the safeguarding of the ward’s income or other assets.
A court may appoint you to be the Guardian of the person, Guardian of the estate, or both. Furthermore, the court may grant you a complete guardianship (known as a “plenary guardianship”) or may limit the authority you have as Guardian (known as a “limited guardianship”) if the court believes that the Ward remains capable of making some, but not all, of his/her own decisions.
How Do I Petition for Guardianship?
If you decide that guardianship is warranted in your situation, you must petition the appropriate court and notify the proposed Ward. The court will typically appoint a Guardian Ad Litem (GAL) to represent the best interests of the Respondent (the proposed Ward). The GAL will likely interview the Respondent and request medical evaluations and records when appropriate. The court will usually set the matter for a hearing within 30 days of the petition. At the hearing, the court will hear evidence regarding the Respondent’s health, mental faculties, finances, housing and life style and will take into account the GAL’s report. If the judge believes a Guardian is warranted he/she will enter an Order indicating what type of Guardian is necessary and whether it is a plenary or limited guardianship. The court will then determine if you are a suitable person to be named that Guardian. The court process can be complicated, particularly if an objection is filed by the Respondent or another family member. As such, it is always best to consult with an experienced Illinois elder law attorney if you are considering the need for a guardianship.
Contact Elder Law Attorneys
For additional information, please download our FREE estate planning worksheet. If you have questions or concerns regarding guardianship in the State of Illinois, contact the experienced elder law attorneys at Nash, Nash, Bean & Ford, LLP by calling 309-944-2188 to schedule your appointment today.