The terms “guardianship” and “conservatorship” have been in the news lately, with reports about Britney Spears’ arrangement with her father to manage many of her affairs. The singer contested the arrangement in court, claiming it was not being carried out in her best interest and won her case.
While that pop culture tale involves a lawsuit over potentially dubious motives, most guardianship cases result from a real need for intervention in the life of a person who lacks the ability to manage their own affairs.
What does guardianship mean?
Guardianship is a legal process by which one or more people is granted power by the courts to manage the health care and/or finances and/or other life matters of a person deemed unable to do so on their own.
During a guardianship case, a Probate Court judge must determine whether the proposed ward — the person believed to need a guardian — has the ability to make safe and sound decisions about their person or property.
Legal guardianship also seeks to protect vulnerable individuals from potential abuse, neglect, fraud, and undue influence by people who might take advantage of their impaired mental or physical state.
Granting one person sole decision-making power over another’s life is not an action the courts take lightly. If guardianship is granted, it represents a significant shift in the amount of power and control a ward has over their personhood, putting them at the mercy of their guardian.
Therefore, convincing a judge of the need for guardianship and the fitness of the potential guardian carries a significant burden of proof.
The person who files a case for guardianship does not have to be the proposed guardian. For example, a man could file a case for guardianship that asks the court to allow his sister to become their aged mother’s guardian.
Guardianship of a person vs. estate guardianship
In a guardianship case, a person can petition the court to give them guardianship over one of two areas of the proposed ward’s life, or both. First, guardianship of the person means the guardian can make decisions about the ward’s health care and living arrangements, among other things.
Estate guardianship, or guardianship of property, gives the guardian power over the ward’s financial and physical assets. The court may grant one or both types of guardianship, based on the petitioner’s circumstances and evidence in the case.
Guardianship is by no means a carte blanche that allows the guardian to spend the ward’s money improperly or make careless health care decisions. When the court grants guardianship, it does so with the stipulation that the guardian will execute their duties thoughtfully and responsibly.
Common guardianship situations
Guardianship due to aging
As their aging mother’s mental state deteriorates, her children find they need to manage her finances and health decisions. Unfortunately, their mother did not arrange for one of the children to take power of attorney for her affairs and now her mental state prevents her from willfully doing so. Her son files a case for guardianship, asking the court to evaluate the situation and grant him the power to make decisions.
Guardianship of disabled child becoming an adult
Parents of a child with Down syndrome apply for guardianship in anticipation of their son’s 18th birthday. They have cared for him since birth, and his developmental disability prevents him from managing his affairs or living independently. They ask a judge to make them guardians of their son in his adult life.
Note: All parents are guardians of their children until age 18. At that time, if a child continues to require a guardian, the parents must seek to establish guardianship with the court.
Guardianship of an adult who develops a disability
During a vehicle crash, a middle-aged man suffers a traumatic brain injury that leaves him incapable of making sound decisions for himself. With no spouse or children, his brother steps in to care for the man and asks the court to grant him guardianship.
Financial guardianship of a minor child receiving an inheritance
When his grandfather dies, a 10-year-old boy inherits $15,000. Illinois law requires him to have guardianship over the estate, so his mother files a case to be appointed guardian of the cash. She is required to file annual reports and make court appearances to verify the accounting with a Probate Court judge.
Guardianship of a minor child
A couple suffering from drug addiction asks a family member to care for their child for a period of time. After a while, it becomes clear that the child’s best interest is to remain in the care of the family member. She applies for guardianship, and the couple consents to the appointment.
Who can become a legal guardian in Illinois?
When a case comes before the Probate Court, the judge ultimately decides whether a person possesses the necessary qualities to become a legal guardian. However, suitable guardians under the law don’t need specific training or knowledge.
To be a guardian in Illinois, a person must be a U.S. resident who is 18 years old or older, and is “of sound mind.” The person cannot be legally deemed “disabled under the Probate Act of Illinois.” The law also prevents people with felony convictions from becoming guardians, though the judge may be convinced to waive this requirement under certain circumstances.
If guardianship is granted, a guardian’s obligations to the ward and the court are just beginning. Guardians must be prepared to arrange for all needs of their ward, including day-to-day care, meals, health care, transportation, recreation, socialization, and more.
Additionally, as mentioned above, a guardian is subject to review by the courts to ensure they uphold their responsibilities. All expenditures from the ward’s estate are subject to court review, and the guardian may be held accountable if estate assets are improperly managed.
How is guardianship granted in Illinois?
The process of gaining guardianship begins with filing court documents with the Probate Court in the county where the ward resides. A series of court hearings will commence, during which the petitioner looking to become a guardian will present their case.
The petitioner has a burden of proof, an obligation to convince the court through facts that the person in question is in need of guardianship. Illinois law presumes that every adult 18 and older is capable of handling their own personal affairs, so the petitioner must overcome this presumption to make his or her case.
Common causes for granting guardianship:
- mental deterioration, such as from Alzheimer’s or dementia
- physical incapacity, such as caused by injury or illness
- mental illness
- developmental disability
The law also provides that a guardian may also be appointed if, because of “gambling, idleness, debauchery, or excessive use of intoxicants or drugs”, a person spends or wastes their estate so as to put the person or their family in a place of “want or suffering.”
However, the mere presence of conditions such as these does not categorically indicate the need for guardianship. The petitioner must also prove that the person’s condition presents such a disability that it prevents them from making or communicating responsible decisions. This involves sworn statements by a physician about the person’s condition, along with other compelling evidence.
Protections during a guardianship case
In addition to considering the need for guardianship and whether the petitioner would serve as a suitable guardian, the judge will also evaluate what arrangement is in the best interest of the person who could become the ward.
The court will appoint a guardian ad litem, a person who works for the court and whose job it is to protect the interests of the proposed ward. To the extent possible, the guardian ad litem communicates with the proposed ward about their rights and wishes for the future and ensures the petitioner’s plans align with their best interest.
A proposed ward has a right to challenge a petition for guardianship, and the court will appoint a lawyer to assist them in their fight against a particular choice of guardian or guardianship altogether.
Guardianship vs. power of attorney
Though they sound alike and address the same subject matter, a guardianship is not the same as power of attorney. The difference lies in the timeframes when the two arrangements are made.
A person creates a power of attorney for himself or herself with the future in mind. They draft this document to appoint someone who will make decisions about their health care or finances if there comes a time when they become unable to do so.
Guardianship cases involve the immediate care of a person who is already allegedly incapacitated. This person lacks a power-of-attorney document, so a loved one appeals to the court to grant him or her guardianship, the legal authority to manage their affairs.
For these reasons, pursuing guardianship should be a last legal resort, when no other options are available. Especially for older people or those facing serious illness, creating a power of attorney is the best option for protecting one’s future interests.
Creating a power of attorney puts you in control, allowing you to choose in advance the terms by which you want your designee to manage your health and finances. It also presents a far more affordable option than appealing for guardianship which, unlike power of attorney, requires a court case.
If you’d like to discuss guardianships
To get help or answers about starting a guardianship case or filing power of attorney documents, contact Sterk Family Law Group. Whether you are a current client or if you are looking for family law or estate planning assistance, our team is here for you to address your concerns.
To the extent possible, we will offer remote consultations and provide services from a distance.
You may message us here, complete the form below to email our office, or call 815-600-8950 and one of our team members will be able to assist you.
This is a legal advertisement from Sterk Family Law Group. It does not constitute legal advice and should not be construed as such. This article is for informational and educational purposes only.