GUARDIANSHIP IN THE STATE OF ILLINOIS

ROBERT N. NASH ILLINOIS ESTATE PLANNING ATTORNEY

“For an adult child, recognizing the signs of dementia can be devastating; yet, failing to recognize them can put your loved one at risk for physical injury or victimization by unscrupulous individuals who prey on the elderly.”

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Although it may be difficult to

admit, the time may come when

you realize your loved one needs a

guardian. Like many other people in

your situation, you may initially view

guardianship as taking away your

parent’s freedom and

independence; however, the reality

is that failing to pursue guardianship

could have severe, even fatal,

consequences for your loved one.

Because petitioning for guardianship

can be a complicated legal process

it is always best to consult with an

experienced Illinois elder law

attorney as soon as you begin

contemplating the need to become a guardian. In the meantime, however, it

may be beneficial to gain a basic understanding of what being a guardian means

and how you go about becoming a guardian.

1.WHEN IS A GUARDIAN NEEDED?

Ultimately, only you can decide when the time has come to consider

guardianship; however, there are some common signs that point to the need for

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someone to step in and protect an elderly individual from injury or victimization,

including, but not limited to:

Excessive and/or consistent “bumps and bruises” that cannot be

sufficiently explained.

Increasing bouts of memory

loss

Misplaced items of value

Late notices for bills

Services being shut off for

non-payment

Worsening health condition

that may be the result of

failing to take medication or

failing to follow-up with doctors

2.WHAT DOES A GUARDIAN DO?

A guardian is someone who has been given the legal authority to act on behalf of

the “disabled person.” The type and extent of the authority a guardian has

depends on which type of guardianship was granted and whether the

guardianship is broad in nature or limited.

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3. ARE THERE DIFFERENT TYPES OF GUARDIANSHIP?

Yes. In the State of Illinois you may be appointed guardian of the person,

guardian of the estate, or both. As guardian of the person you may make

decisions relating to the “person” and the physical care of the disabled person.

For example, as guardian of the person you might be able to decide where the

disabled person lives and/or decide what doctor(s) will treat the disabled person.

A guardian of the estate has the authority to make decisions relating to the

estate of the disabled person, including assets, property, and other financial

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matters. For instance, as guardian of the estate you might decide which bills

need to be paid or which assets need to be liquidated.

4. WHO CAN BE A GUARDIAN?

The legal requirements for being appointed a guardian are fairly limited. You

must be at least 18 years old and not have been convicted of a felony involving

harm to a minor child or an elderly victim. Clearly, you must also be able to carry

out the duties and responsibilities of a guardian if appointed.

5. HOW DO I BECOME A GUARDIAN?

To become a guardian you must petition the appropriate court. The Petition is

typically filed in the county where the disabled person is a resident. The Petition

should set forth, in detail, the reasons why the Petitioner believes a guardian is

needed as well as explain why the Petitioner would be a good choice as

guardian. Once filed with the court, the Petition must also be served on

interested parties, such as close relatives of the proposed ward (disabled person)

as well as on the proposed ward himself/herself. Any of these people may file an

official written objection to the appointment of a guardian and/or to your

appointment as guardian.

If the disabled person still has the capacity to consent to the appointment of a

guardian it makes the entire process much easier. Sometimes, for example,

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when an elderly individual is diagnosed with Alzheimer’s he/she consents to the

appointment of a guardian early on before the disease makes consent

impossible.

If, however, the proposed ward cannot or will not consent, and/or a written

objection was filed by another interested party, the court will usually set the

matter for a hearing. At the hearing you must be prepared to convince the judge

that guardianship is necessary and that you are the best person for the job.

6. HOW DOES THE JUDGE DECIDE IF A GUARDIAN IS

NEEDED?

Before a court will

consider appointing

you as a guardian for

your parent, or other

loved one, the court

must first make a

determination that

you parent is disabled.

Typically, the judge

must decide that

because of mental deterioration or mental illness, or physical incapacity or

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developmental disability, the proposed ward (your parent or loved one) is unable

to fully handle his or her own affairs in a safe manner and is therefore in need of

a guardian. To make this decision, the judge will usually review reports

submitted by the Petitioner (you) as well as testimony given at the hearing.

When the court deems it necessary, a Guardian Ad Litem (GAL) will be appointed

as well. A GAL is appointed to represent the best interest of the proposed ward.

To do this, he/she will usually conduct an investigation that may include

interviewing you and the proposed ward along with treating physicians and

anyone else who may be relevant and helpful. The GAL will then submit a report

to the court to be used by the judge.

If you believe your parent, or other elderly loved one, may be in need of a

guardian it is imperative that you consult with an experienced Illinois elder law

attorney as soon as possible. The guardianship process can take several months

to complete, leaving your loved one vulnerable during the interim. For this

reason alone it is best to begin the legal process as soon as possible.

REFERENCES:

Illinois Legal Aid, Disabilities Guidebook: Guardianship of Adults with Disabilities

Office of State Guardian, A Practitioner’s Guide to Adult Guardianship in Illinois

Illinois Compiled Statutes, Guardians for Adults with Disabilities

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About the Author

Robert N. Nash

Robert N. Nash is a partner in the law firm of Nash Nash Bean & Ford, LLP. The law firm has

offices in Geneseo and Moline, Illinois and conference facilities available throughout

Northwestern Illinois. Mr. Nash chose the estate and business planning arena because he

believes it provides a positive force in his clients’ lives. He practices preventative, rather

than remedial law. Robert Nash focuses on all aspects of estate planning, including estate,

gift and income taxes, trust and probate administration, real estate, and business.

Nash Nash Bean & Ford, LLP www.nashbeanford.com

Geneseo

445 US Highway 6 East Geneseo, IL 61254

Phone: (309) 944-2188 Fax: (309) 944-3960

Moline

5030 38th Avenue, Suite 2 Moline, IL 61265

Phone: (309) 762-9368 Fax: (309) 944-3960