Articles Tagged with contested guardianship

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.

One of the most important, but most often overlooked estate planning documents, are the Powers of Attorney. Powers of Attorney fall into one of two categories: (1) Powers of Attorney for Property and (2) Powers of Attorney for Health Care. Essentially a Power of Attorney legally authorizes a trusted family member or friend to make decisions on your behalf in the event that you become incapacitated or are unable to make decisions on your own. Powers of Attorney are powerful documents that can protect you and your family from the need for expensive guardianship proceedings.

Although Powers of Attorney for Health Care are regularly accepted by hospitals and doctors, many banks and financial institutions are making it harder and harder to use a legally valid Power of Attorney Document. If a manager at your financial institution believes, in good faith, that your Power of Attorney is no longer valid you may be left with no choice but to petition a court for guardianship.

To avoid this from happening we advise that you review your Powers of Attorney to ensure (1) the your Power of Attorney documents are up to date and include the most recent statutory language; (2) that your Powers of Attorney are no more than 5 years old; and (3) that your Power of Attorney allow sufficient authority for your agent to amend trust documents, make gifts, and designate or change beneficiaries.

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.

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:

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.

badges