When you hear the term “guardianship,” you probably think about children that are without parents for one reason or another. Indeed, this is one form of guardianship, but adult guardianship is also necessary in some cases. This is something that we routinely address as elder law attorneys, and you should certainly understand some facts about the guardianship process when you are planning ahead for the future.
Before we get into adult guardianship in Illinois, we should also take a look at the term “conservatorship.” In some states, a conservator is someone that would handle the financial affairs of a ward that could no longer make sound monetary decisions. A guardian would take care of personal decision-making that did not involve financial matters. In fact, here in Illinois, we used to have conservatorships, but that changed in 1979.
Now, in our state there are two different types of adult guardianship, and there are no longer conservatorships. There is a guardianship of the person that empowers someone to make personal decisions on behalf of the incapacitated adult, and a guardianship of the estate that can be granted to appoint a financial decision maker. To initiate a guardianship proceeding, an interested party would file a petition with the court, and the court would hear all of the testimony and examine the evidence to make a determination.
Our firm focuses in elder law and estate planning matters, and we assist clients that want to be comprehensively prepared for all of the eventualities of aging. It is important to fully understand the fact that a very significant percentage of people become unable to make sound personal and financial decisions at some point in time.
The United States Census Bureau has stated that the segment of the population that was between 85 and 94 years of age grew faster than any other group between the last two censuses. Somewhere in the vicinity of 40 percent of people that are 85 years of age and older have Alzheimer’s disease. It is statistically likely that you will live into your mid-80s if you are fortunate enough to celebrate your 67th birthday.
When you put all of these statistics together, you can see that adult guardianship can become a very real possibility for many elders. The process serves a useful purpose when it is absolutely necessary, but there are some potential drawbacks to consider.
First and foremost, if you are like most people, you would not feel comfortable leaving this decision up to a court. Secondly, family members could disagree about a number of different details during the guardianship proceeding. This can lead to hard feelings during a time when family members should ideally be supporting one another during a difficult time in their lives.
You can be proactive about taking steps to prevent a guardianship when you are devising your estate plan. There are legally binding documents called durable powers of attorney that do remain active even if you do in fact become incapacitated. You can execute a durable power of attorney for health care matters, and another one to name a person or entity to manage your financial affairs in the event of your incapacitation.
When these documents are in place, representatives of your own choosing will be empower to act for you if it ever becomes necessary, so you can go forward with peace of mind on that level. Plus, everyone in your family will know that you personally selected the representatives that will be handling your decision-making, so there would be no cause for disagreements.
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Now is the time for action if you do not have a well-constructed estate plan in place that includes an incapacity planning component. You can call us right now at 309-944-2188 or 800-644-5345 to schedule a consultation.