What to Expect at a Guardianship Hearing
February 8, 2016
By Rick Law, Managing Partner at the Estate Planning Center at Law Elder Law in Aurora, Illinois. Right off of the Farnsworth Exit of the I-88 Tollway in Western Chicagoland.
In the Illinois guardianship hearing:
- the person with alleged disabilities has the right to be present;
- the person with alleged disabilities must be given at least 14 days advance notice of the hearing;
- the rules of civil procedure apply;
- witnesses generally include doctors, social workers, caregivers, and family members;
- courts accord equal weight to medical and lay testimony;
- the guardian ad litem will frequently be appointed to serve as defense council;
- the person with alleged disabilities must be adjudged disabled by clear and convincing evidence before a guardian will be appointed;
- if there is an existing power of attorney for the ward, it can be used as a defense against the appointment of a guardian;
- upon the death of the respondent, pending litigation regarding the appointment of a guardian terminates.
The respondent is entitled to be represented by counsel, to demand a jury of six people, to present evidence, and to confront and cross-examine all witnesses. The hearing may be closed to the public on request of the respondent, the guardian ad litem, or appointed or other counsel for the respondent.
Unless excused by the court upon a showing that the respondent refuses to be present or will suffer harm if required to attend, the respondent will be present at the hearing.
In deciding whether to include a request for the appointment of a guardian of the estate or merely a request for the appointment of a guardian of the person, it is important to note that the court probably will allow a petitioner to drop a request for appointment of a guardian of the estate at the hearing date, but may not later allow the petitioner to simply amend the petition to include such a request due to a lack of jurisdiction as a result of improper notice to both the respondent and those people entitled to receive notice under 755 Illinois Compiled Statutes act 5, section 11a-8.
Upon oral or written motion by the respondent or the guardian ad litem or on the court’s own motion, the court must appoint one or more independent experts to examine the respondent.
At the hearing the court must inquire regarding;
- the nature and extent of respondent’s general intellectual and physical functioning;
- the extent of the impairment of the respondent’s adaptive behavior if he or she is a person with a developmental disability, or the nature and severity of the mental illness if he or she is a person with mental illness;
- the understanding and capacity of the respondent to make and communicate responsible decisions concerning the respondent’s person;
- the capacity of the respondent to manage his or her estate and financial affairs;
- the appropriateness of proposed and alternate living arrangements;
- the impact of the disability upon the respondent’s functioning in the basic activities of daily living and the important decisions faced by the respondent or normally faced by adult members of the respondent’s community; and
- any other area of inquiry deemed appropriate by the court.
Too many families needlessly lose everything they have. Don’t let that be you. If you need help paying the overwhelming cost of long term care, give our office a call at 800-310-3100. 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 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. Call 800-310-3100 for your free consultation now!