Articles Posted in Guardianship

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In last week’s post, I shared a few ways to provide support with estate planning to a family member or loved one with mental health challenges. Here are 3 more ways you may be able to support them, depending on their specific situation:

• Consider a guardianship. If this family member or loved one does not have the necessary capacity to sign legal documents, a guardianship for this person may be needed. There are two types of guardianships. Guardianship over someone’s assets, often called a conservatorship, involves someone making decisions over things such as their accounts and real estate. Guardianship can also be over the person themself, and a guardian may make decisions about where the individual lives as well as decisions about doctors and medications.

• Find the right type of guardianship for the situation. Guardianships (and conservatorships) can be limited in nature. Your family member may need help with some things, such as finding housing or caregivers, but be able to take care of most other things in their day-to-day life on their own. In this type of case, a limited guardianship may be recommended. A conservator might also oversee a large brokerage account or something along those lines, but the individual may have a small account and debit card that they use for daily expenses.

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When a non-lawyer ventures into the world of probate or guardianship, one item that usually causes confusion is the requirement for the representative to post a bond. Under Illinois law, a court-appointed representative is required to post a bond which covers 150% of the value of the personal estate. This requirement is in place for anyone serving as guardian of an estate for a person with a disability. It is also required for the administrator or executor of a decedent’s estate. Although in the case of decedents estates, the requirement for a bond can be waived, but only if the waiver is explicitly stated in the decedent’s will.

So what does a bond do? In essence, it acts like an insurance policy that protects the estate from the actions by the representative. The representative (although it can usually be paid out of the estate’s funds) is required to pay an annual premium which is a fraction of the full amount of coverage. The bond company then insures and protects the assets of the estate from any potential losses.

How does one actually acquire a bond? Most counties have their own standardized forms which the representative would need to sign called a “surety bond” form. This document needs to be signed and notarized and then sent to the bond company for execution. The bond companies also have their own forms and applications which need to be completed by the representative before they will approve the bond. In some counties, the bond companies have representatives who spend a portion of their day in the courthouse, which makes it easier to obtain a bond on short notice.

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Open enrollment for Medicare runs from October 15th to December 7th this year. If you are eligible for Medicare, you are more likely than ever to be the target of Medicare related scams this year. Medicare scammers are smart and they know exactly what types of scenarios, incentives and stories are most likely to ensnare seniors.

Typical scam calls may be about a refund of premiums, the need for a new Medicare card, false offers of free medical services and bogus Medigap plans. No matter the story used, service offered, or purported identity of the caller, the objective is for the scammer to obtain the senior’s Social Security number by slowly extracting as much personal information as possible from their victim.

Here are some important things for seniors to remember about Medicare to help weed out fake callers:

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When a Petition for Guardianship of an Adult with an Alledged Disability is filed, the Court will often times appoint a Guardian ad Litem (GAL) to conduct an investigation.  The GAL is a local attorney who is responsible for representing the best interests of the Respondent in the guardianship proceeding.  Since the Judge cannot physically go out to meet with each of the parties involved, he/she relies on the reports of the GAL.  The GAL is essentially considered the “eyes and ears” of the Court.

The first task of the GAL is usually to meet with the Respondent (the person with the disability).  The GAL will advise the Respondent of his/her rights in the proceedings and ask various questions to ascertain the opinions of the Respondent.  Often times the GAL will also want to meet with the person who filed the underlying Petition for Guardianship, as well as other family members and caregivers of the Respondent.  Once the investigation has been completed, the GAL will submit a report to the Court that includes any information which the Judge may find relevant.  The GAL will also make a recommendation as to whether the guardianship should be approved and who should serve the role of Guardian.

It should be noted that the GAL represents the best interests of the Respondent.  Sometimes what the Respondent wants is not necessarily what is in his/her best interests.  In that case the Judge may appoint another attorney to represent the Respondent.  If the Respondent objects to the guardianship, the GAL will usually serve as the key witness at trial.

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In a time when advances in medicine are providing longer, more fulfilling lives for our family members with special needs, it is more important than ever to take advantage of all the financial planning tools available for their specific needs.

The Illinois ABLE Act provides for a new tax-advantaged investment program that allows a blind or disabled person (or their family) to save for disability related expenses without jeopardizing the disabled individuals means tested federal benefits. Unlike the assets of a traditional Special Needs Trust, ABLE account assets can and should be spent on expenses related to the family member’s disability. These expenses include education, housing, transportation, employment training, assistive technology, personal support services, health, prevention and wellness, financial management, legal fees, and funeral/burial expenses.

A properly established ABLE account will allow a disabled individual to save up to $100,000 in their own name. The disabled person or their family may contribute up to $14,000 per year into the ABLE account without effecting eligibility for SSI or other federal means tested programs. Although the Illinois State Treasurer’s Office is responsible for administering the ABLE program, the funds are privately held assets that are totally controlled by the account holder.

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When a guardian has been appointed for a person with a disability (the “ward”) there are sometimes disagreements as to that person’s care.  These disagreements are usually between the guardian and the other relatives of the ward.  Sometimes a guardian may attempt to push the limits of their power by blocking visitation by the ward’s adult children.  In this circumstance, the adult children may feel like they have no options but to obey the commands of the guardian.  However, under Illinois law there is a remedy available for those children.

The Illinois Probate Act provides that an adult child of a ward may petition the court if it is believed that the guardian is unreasonably preventing visitation.  755 ILCS 5/11a-17(g)(2).  If the court finds visitation to be in the best interests of the ward, the court may order the guardian to allow visitation.  When determining whether visitation is in the ward’s best interests, the primary question the court will ask is whether the ward, if competent, would have wanted to engage in visitation with the adult child.

If the wishes of the ward cannot be determined, the court will then review the following factors to determine his/her best interests:

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When a guardian is appointed for a person with a disability (the “ward”), the guardian is required to follow certain guidelines.  There are two types of guardianships in Illinois, and they each have different rules to follow.

The first is “guardianship of the person.”  The guardian of the person is responsible for securing the support, care, comfort, education, and professional services for the ward.  Pursuant to the Illinois Probate Act, the guardian of the person is also expected to assist the ward in the development of maximum self-reliance and independence.  Despite the fact that guardians seemingly have a substantial amount of authority, they are not given carte blanche permission to make every decision associated with the ward.  A guardian is still expected to listen to the wishes of the ward and make an effort to carry out those wishes.  Furthermore, a guardian cannot change the residential placement of the ward without explicit authorization from the court.  This prevents a guardian from being able to place a ward in a nursing home without a thorough investigation by the court to determine if that home is in the ward’s best interests.

The second type of guardianship is called the “guardianship of the estate.”  The estate guardian is responsible for handling the finances and assets of the ward.  He/she is expected to manage the estate frugally and apply the income and principal of the estate so far as necessary for the comfort and suitable support and education of the ward (755 ILCS 5/11a-18).  The guardian may make payments directly to the ward, or to a third party to pay for things like rent, food, clothing, entertainment, etc.  Once again, this is a significant amount of power, but it is not without its limits.  A guardian of the estate can only spend the ward’s assets on things that directly benefit the ward or the ward’s minor or adult dependent children.  If the guardian is not following these guidelines, it may be grounds for the guardian to be removed.

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Many times clients will call our firm and state that they need a Power of Attorney for their elderly relative because he/she has dementia or some other condition which causes diminished capacity.  Unfortunately, depending on the current mental capacity of the relative, it may be too late for them to sign a Power of Attorney.  The person signing the Power of Attorney has to completely understand the document to which they are executing.  It is not simply enough to be able to physically sign one’s name.  They need to comprehend the nature of the document and who they are appointing as their agent under the POA.

Powers of Attorney are important legal tools that allow a person to name an agent to handle their financial or medical decision making.  These are crucial documents which must be executed according to the standards set forth in the law.  If the documents are not executed properly, it could invalidate the Power of Attorney.  One common problem is where people attempt to have their relative sign the Power of Attorney when they lack the proper mental capacity.

However, even if someone does not have the proper mental capacity, there are other routes which are available to the family members.  Often times the only choice for the family in this situation is to pursue a guardianship.  When this happens, one or more of the family members will petition a court to become the court-appointed guardian of their relative (known as the “Respondent”).  If the judge approves the petition, the family member(s) will have the ability to handle the personal and financial affairs of the Respondent, in the same manner that an agent under a Power of Attorney would act.

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