- First, when does a person need a guardianship?
The answer is…..only when they are not capable of making and communicating responsible decisions.
This could be caused by mental deterioration, physical incapacity, mental illness, developmental disability, or because of gambling, idleness, debauchery, or excessive use of intoxicants or drugs, meaning that the person spends or wastes his estate as to expose himself or his family to want or suffering.
- What is the process for obtaining a guardianship?
The process for obtaining a guardianship begins when someone – it can be anyone who has an interest in making sure that the alleged disabled person is protected – files a petition saying that they believe the person needs a guardian and ask for someone to be appointed.
For example, if Jane thinks her husband Jack needs a guardian, Jane would petition for him to have a guardian. She would likely say that, as a spouse, Jane herself should be the guardian.
In other cases, it might be an agency like Senior Services that petitions for someone to have a guardian. If one of their seniors needs a guardian, and they might recommend the person they think is best for the job. For example, they might be the caregiving granddaughter, or the Kane County Public Guardian. The first step is filing a petition with the court.
The second thing that needs to be filed with that petition is a physician’s report. The physician’s report has to be created by a medical doctor. It should show the diagnosis, how that diagnosis impairs the alleged disabled person’s ability to make decisions for their estate or their health, and what’s a suitable living arrangement for them.
Upon filing the petition, the court will appoint a “guardian ad litem”. The guardian ad litem doesn’t represent the family or the alleged disabled person – they are simply there to be the eyes and ears of the court. The guardian ad litem should go out and meet with the alleged disabled person, the family, the caregivers, and friends of the alleged disabled person.
The guardian ad litem will make a recommendation to the court as to whether or not this person does need a guardian; and who that guardian should be. Finally, there’s a hearing in court. The disabled person then has a right to obtain counsel, demand a jury trial, and to be independently evaluated by a different doctor.
Too many families needlessly lose everything they have. Don’t let that be you. If you need help building a fortress around your estate to protect it from creditors, predators, and the cost of chronic disease, give our office a call at 800-310-3100 or 630-585-5200. Your first consultation is absolutely free. We’ll let you know what steps you need to take, right now, to protect yourself and your family. Call now, because when you’re out of money, you’re out of options!
Rick L. Law, Attorney, Estate Planner for Retirees.
Rick was named the #1 Illinois elder law estate planning attorney for 3 years in a row by Leading Lawyer Magazine. He has been quoted in the Wall Street Journal, AARP Magazine, TheStreet.com, and numerous newspapers and articles. Rick is the lead attorney for Law Elder Law, LLP, focusing in Estate Planning, Guardianship, and Nursing Home Solutions. His goal is to give retirees an informed edge when it comes to dealing with an uncertain future. Get flexible retirement strategies that work during good times and bad, plus information on how you can save your home and assets from being used to pay for long term care.
By Rick Law. Estate Planning Attorney at Law Elder Law in Aurora, IL
You may be asking yourself what to do in the case that your loved one does need a guardian.