Many families have to face the unpleasant realization that a family member is not able to take care of him- or herself. While many times the issues leading to that realization are obvious, other times they are not. It is not uncommon for adult children to wonder if a parent has become unable to function well enough to handle day-to-day decisions.
An adult child who wonders if his or her mother needs a guardianship must consult with an elder-care attorney before doing anything else. Officially petitioning a court to appoint a guardian for a parent is a serious matter that requires proper forethought and consideration. If you believe that your mother, or another older relative, is in need of a guardian you should speak to your estate planning attorney before taking any further action.
In order to have a guardian appointed for a parent, the court must rule that the parent is incompetent when it comes to issues like decision making and self-care. A ruling of incompetence can cover all aspects of the person’s life or just a few. It can be long- or short-term. The ruling is based on your parent’s ability to make sound decisions. If, for example, your mother is signing away all her assets to people who then disappear, a petitioner could claim financial incompetence, especially if your mother does not appear to understand what is happening. However, if your mother is just investing money in legitimate investments that you don’t approve of that would not likely rise to the level of incompetence.
The court will have a hearing to determine your mother’s level of competence. Your mother will be able to contest the petition. In addition, other close relatives are entitled to notification of the proceedings and may object. Not surprisingly, this can cause conflict within the family. In Illinois, the court will listen to and review all of the evidence and make a determination as to whether your mother needs a guardian or not. If the court does conclude that a guardian is needed the court will also decide what authority the guardian will have.
Petitioning to have a parent declared incompetent can be fraught with difficulty. Guidance from an elder law attorney is vital in cases where a parent might be incompetent. Those who are facing this situation should talk to an attorney as soon as possible, especially if the parent is showing signs that he or she needs care immediately.
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