Overview of Disabled Adult Guardianships
Disabled adult guardianship can become necessary when an adult becomes incapacitated to the degree that he or she is unable to manage his or her financial or personal affairs. In these cases a guardianship proceeding may be instituted in the probate court to appoint a guardian to provide needed assistance to the incapacitated person.
What you should know up-front is that guardianship can be costly and complicated. In many cases, alternatives to guardianship can and should be used. Guardianship should be considered a last resort, a mechanism by which a person’s legal rights are taken away for a sound and necessary purpose. It should never be used in a retaliatory manner or as a convenience for a health care provider or a family member.
Different Types of Guardianship
There are many kinds of guardianships including disabled person guardianship, plenary guardianship, and adult guardianship. In addition to guardianship of the person there is guardianship of the estate. Guardianship of the person relates to personal care and involves decisions and activities regarding medical treatment, residential placement, social services and other needs. Guardianship of the estate relates to an inability to make or communicate responsible decisions regarding the management of financial matters. The estate guardian will, under court supervision, make decisions about the ward’s funds and the safeguarding of the ward’s income and assets.
The Legal Process
For a guardian to be appointed, a petition must be filed in the probate court by an “interested person.” The petition includes basic information, such as the name, date of birth and address of the person alleged to be in need of guardianship. A report must also be filed which includes a physician’s description of the person’s physical and mental capacity along with relevant evaluations which would enable the judge to determine the type of guardianship needed.
Disabled adult guardianship hearings are set within 30 days of a petition being filed with the court. The alleged disabled person, or respondent, must be served with summons and a copy of the petition. The respondent may be represented by a lawyer and has a right to a jury trial where he/she may present evidence and cross-examine witnesses. Where appropriate, the court will appoint an attorney or lay person to serve as the guardian ad litem. The guardian ad litem acts as the “eyes and ears” of the court, and advocates for the best interest of the respondent. Before the hearing, the guardian ad litem interviews the respondent, informs him/her of his/her rights, and investigates the appropriateness of guardianship. If the alleged disabled person opposes the opinions of the guardian ad litem, or disputes the need for guardianship, the court may appoint an attorney to represent the respondent.
At the hearing, evidence about the respondent’s health, mental faculties, finances, housing and life style is presented. The guardian ad litem reports to the court as to the condition of the respondent and makes recommendations regarding the type of disabled adult guardianship needed. The court reviews all the information presented and either enters a limited or plenary guardianship order or finds that no guardianship is warranted.
An appointed guardian is responsible for overseeing a program intended to maximize the disabled person’s (“ward’s) self-reliance, independence and general quality of life. A person guardian also may be required to submit an annual report to the court concerning the services provided to the ward and the status of the ward’s personal care. Estate guardians must file inventories of the ward’s assets and periodic accounting of estate receipts and disbursements. All estate expenditures are subject to court review, and the guardian may be held accountable for estate assets improperly managed.
If a change in guardianship seems indicated at any time, or if the annual report recommends that guardianship be changed or revoked entirely, a petition for modification or termination of guardianship can be filed. Based on this, the judge may then terminate the guardianship or modify the guardian’s duties. A court may also appoint a successor guardian if a guardian is unwilling or unable to perform his duties.
Any party filing a petition for a disabled adult guardianship usually is required to pay fees for filing, sheriff’s fees for the service of summons on the respondent, and attorney’s fees. Although it is not required, petitioners are generally represented by attorneys, particularly in contested guardianship cases. In some cases, the petitioner may pay fees for the services of the guardian ad litem or the physician who prepares the medical report. If the respondent has funds, these may be used to pay costs and fees.
Disabled Adult and a Supplemental Special Needs Trust
If you have a child or someone else in your life who needs, or will need, more than ordinary care as an adult – consider establishing a special needs trust. Properly set-up, a special needs trust can help to ensure high quality of life for its beneficiary without putting medical and other benefits the individual may qualify for at risk.
If you live in the Chicago or Lake County area, and need an experienced Guardianship attorney, please Contact Us.
What Our Clients Are Saying About Us:
Dear Eric, I just want you to know how much I appreciate everything you've done for me and the thoroughness with which you did it. You are indeed a most impressive will-maker, including the the serendipitous coverage your "compulsivity" supplies. You truly lift the experience from the quotidian to an art-form. In addition, you are a real mensch, in its best sense: open, warm, caring, understanding and honest. Again, my thanks to you and your staff for your help. With best wishes, S.B
Eric and Julie: On behalf of the Edgebrook Women's Club would like to thank you and express our gratitude for your wonderfully informative presentation to our group. As was evident from the many questions your information was needed, very well received and your situational examples registered with many in the audience. Thank you again for providing a much needed and informative presentation.
"Eric, Thanks again for helping me get this signed and completed. It's a big comfort knowing that my will and estate is in order. Thank you again for your generosity and friendship. I really appreciate being able to get this taken care of and with a certain level of confidence. I trust you and feel really comfortable with your advice. I've already referred some friends to you. I will continue to be your advocate and biggest fan!"
"We felt very comfortable with both attorneys. We would feel comfortable if we had to call to have questions answered. The atmosphere with Mr. Matlin was great, and we left the office feeling positive about something that is so important to us."
"I believe Eric did an excellent job communicating the related issues, options and was very helpful in assisting in making final decisions. The process was very helpful and resulted in us making the right decisions for ourselves. It was very easy and educational to work with Eric Matlin and his team."
How Much Does Estate Planning Cost in Illinois?
Estate planning is an important milestone in an adult’s life. Regardless of wealth and status, everyone benefits from estate planning, to ensure that
Estate Planning Checklist: 5 Essential Steps to Protect Your Future
When tragedy strikes, it reminds us that life is precious. Recently, friends of clients of mine lost their 17-year-old son to a skiing
Being a trustee or executor is stressful. Become de-stressed.
You have been chosen by a family member or friend to act for them or on behalf of their family in times of
Do you need a health care power of attorney? The answer might surprise you.
Let’s back up a little bit and talk first about what a health care power of attorney is. A health care power of
Should I agree to serve as executor?
Have you been appointed as the executor of an estate? Carrying out your duties can feel overwhelming and sometimes like a second job.
How to Contest a Will in Illinois
When a person passes away with a will, that will is submitted to probate. Probate is the process by which the directives in
DO “DINKS” NEED ESTATE PLANNING?
We often hear the from our married clients who have double income and no kids: "We do not have any kids so we only
DO YOU KNOW WHO YOUR HEALTHCARE AGENT SHOULD BE? TAKE THIS QUIZ TO FIND OUT.
QUIZ for HOW TO PICK A HEALTH CARE AGENT OR PROXY Sophie was laying in her bed feeling feverish and a little bit lost.
Should You Use A “Do-It-Yourself” Estate Planning Service?
QUESTION: Should You Use A “Do-It-Yourself” Estate Planning Service? Many people ask whether it is a good idea to use a DIY estate planning service to
Living Without a Will
A recent Gallup Poll has indicated that at least 56% of U.S. citizens do not have a will in place. Taking a closer
In re Estate of Marion Young Tait 2017 IL App (3d) 150834
In the recently decided appellate case, In re Estate of Marion Young Tait, the third district of the Appellate Court of Illinois was faced with
Electronic Records and end-of-life plans
Planning for the future of your health care doesn’t stop when you ink your name at the bottom of a Power of Attorney,
Spring Cleaning – Getting Your Documents Organized for Your Estate plan
It is officially spring! When many of us awaken from our long winter hibernation just in time for annual spring cleaning, the perfect
Are You Covering Your Children’s Health Insurance Costs Without Any Access to Their Medical Information?
The Affordable Care Act requires plans that offer dependent coverage to make the dependent coverage available until the adult child reaches the age
WHAT IS CAPACITY, AND WHY DOES IT MATTER?
Mom is 78 years old, living alone after the death of Dad. She was recently diagnosed with the early stages of Alzheimer’s. Mom
October is Breast Cancer Awareness Month
October is Breast Cancer Awareness month. All of us probably know somebody who has been affected by breast cancer. According to Cancer.org, breast
Local author pens estate planning book
Alan P. Henry, Freelance Reporter 12:59 am CDT March 28, 2018 The challenge, as Eric Matlin saw it, was to write a
Should Your Executor Be Your Eldest Child?
When we meet with our estate planning clients to talk about who might act for them in the event of disability or death,
Barbara Bush’s Comfort Care Decision at End of Life – Rest in Peace
At the end of life, families are often faced with decisions about whether to continue to treat health conditions facing a loved one
Estate planning attorney Eric Matlin pleads guilty to entertaining readers
Attorney Eric G. Matlin was recently featured in a weekly Sunday Breakfast article in the North Shore Weekend by JWC Media, written by
"Be Kind; Everyone You Meet is Fighting a Hard Battle"
“Everyone you meet is fighting a battle you know nothing about. Be kind. Always.” Each year, nearly 45,000 Americans commit suicide, and that’s
Non-traditional relationships also need estate planning.
If you have an important non-traditional relationship other than marriage, it is especially imperative that your legal affairs are in order. Sometimes the
When Do You Need Estate Planning? How to Start at Any Age
When do you need estate planning? At every stage of adult life! Estate planning isn’t just something older people with great wealth do.
Will Planning Guide: How to Make a Legal Will in Illinois
Making a Will can be a daunting task. You know it’s important to plan for what will happen to your property, dependents and
A Guide to Estate Planning for Young Families
Every legal adult needs an estate plan, powers of attorney and HIPAA authorization at the very least, but the scope of planning may