Guardianship: A Useful Life-Planning Tool

Guardianships may be used to help care for an aging or disabled parent, to plan for the care of a minor child by will, or to make decisions for the minor child of another. Whether you are becoming the guardian for a parent or choosing a guardian for your child, there are several issues to consider and discuss with your attorney before executing any documents.

In Illinois, there are two types of guardians: a guardian of the person and a guardian of the estate. A guardian of the person makes decisions concerning food, shelter, medical care, and clothing. A guardian of the estate makes decisions about money. For example, the guardian of the estate may pay bills, file taxes, and manage assets. Certain major decisions require prior court approval. Major decisions by the guardian of the person may include placement of a disabled adult in a residential facility or invasive medical care. Major decisions by the guardian of the estate may include major expenditures or sale of assets.

A guardian must be 18 years of age, a resident of the United States, of sound mind, not an adjudged disabled person, not a convicted felon, and capable of providing an active and suitable program of guardianship. A guardian of the estate must also be a resident of the State of Illinois.

Guardianships for Disabled Adults

Due to illness or injury, many adults lose the ability to make or communicate decisions about managing their lives or their estates. If you or a loved one are experiencing difficulty making personal or financial decisions due to a disability, it may be time to consider a court action to have a guardian appointed.

In determining whether it is appropriate to pursue a guardianship, consider what plans have already been made for managing the person and estate of the disabled adult. For instance, prior to the disability, did the disabled adult execute a Power of Attorney for Healthcare designating an agent to make healthcare decisions in the event of the disability? Or, did the disabled adult execute a Power of Attorney for Property appointing an agent to deal with property decisions in the event of the disability? These documents may be sufficient to manage the affairs of the disabled adult, however, there are circumstances under which the appointment of a guardian may still be necessary. For instance, a guardianship may be pursued so that the guardian may remove an agent who is acting improperly under a power of attorney.

A guardian may be appointed by the court after a petition has been filed by a reputable person or by the alleged disabled adult, or upon the court's own motion. A guardian of the person may be appointed only if, because of the disability, the disabled adult lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the care of his person. A guardian of the estate may be appointed only if, because of the disability, the disabled adult is unable to manage his or her estate or financial affairs.

While of sound mind and memory an adult may designate in writing a qualified person, corporation, or public agency to be appointed as guardian of his or her person or estate in the event he or she is adjudged a disabled person. Nonetheless, the court must still find that the appointment of the designated guardian will serve the best interests and welfare of the disabled adult.

A petition for guardianship must be accompanied by a report prepared by at least one doctor. This report must contain comprehensive information about the condition of the disabled adult, including an explanation about how the disability has an impact on the ability to function and make decisions, a description of the disability, the results of all evaluations, and the recommendations as to the need for a guardian. This report will be made available to the guardian ad litem, a court-appointed person who represents the disabled adult, the petitioner, the disabled adult, and the attorneys.

During the proceeding on the petition for guardianship, the disabled adult is entitled to be represented by counsel, to demand a jury of six persons, to present evidence, and to confront and cross-examine all witnesses. The court may appoint a guardian ad litem to report to the court concerning the best interests of the disabled adult. The guardian ad litem need not be an attorney but must be qualified to work with and advocate for those with disabilities.

Determining whether a guardianship is necessary and who should act as guardian is a difficult decision and one that should not be made without being fully informed. If you believe that a guardianship may be necessary to manage your affairs or those of a loved one, please contact our office to discuss these issues.

Guardianships for Minors

There are times when the parents of a minor child may need to appoint a third person to make childcare decisions. For instance, the parents may take a vacation or travel on business and leave the child with a relative or a friend. While a relative or friend will be able to care for certain day-to-day needs of the child, the permission of a child's guardian may be necessary for matters such as authorization for medical treatment or school enrollment.

There are several ways a parent may designate a guardian of the person or estate of a minor or of a child likely to be born. These are the three most common ways:

• In any writing, including a will: The designation must be witnessed by two or more credible witnesses at least 18 years of age, neither of whom is the person designated as the guardian. The designation of a guardian by one parent does not affect the rights of the other parent. Designating a guardian by will allows the parents of a minor child to control who cares for the person and estate of their child in the event of both parents' deaths. When the will is probated, the court appoints the guardian designated in the will.
• Upon the filing of a petition for the appointment of a guardian or upon the court's own motion: The court may not proceed on a petition for the appointment of a guardian of a minor if the minor has a living parent, whose whereabouts are known and who is willing and able to make and carry out day-to-day childcare decisions concerning the minor, unless the parent consents to the appointment. To protect the interests of the minor during a guardianship proceeding, the court may appoint a guardian ad litem to represent and report on the best interests of the minor.
• In writing without court approval: This is considered a short-term guardianship of the person. The written instrument should be dated and should identify the appointing parent, the minor, and the person appointed to be the short-term guardian. The written instrument must be signed by the appointing parent in the presence of at least two credible witnesses at least 18 years of age, neither of whom is the person appointed as the short-term guardian. The person appointed must also sign the written instrument. If a non-appointing parent is alive, has known whereabouts, and is willing and able to carry our day-to-day childcare decisions, this parent must consent to the appointment of the short-term guardian. The appointment of the short-term guardian becomes effective immediately upon execution unless the written instrument provides a different effective date. Short-term guardianships may not exceed 60 days, and may be amended or revoked by the appointing parent at any time and in any manner communicated to the short-term guardian or to any other person. The appointment of a short-term guardian by one parent does not affect the parental rights of the other parent.

Becoming a guardian for the minor child of another, especially if the petition for guardianship is contested, can be a difficult and time-consuming undertaking. Choosing and appointing a guardian for your minor child may be one of the most important decisions of your life. If you need help examining the relevant issues, please contact our office for assistance.

Legal advice varies depending on the facts; for that reason, the information contained in this bulletin should not be acted on without consulting a lawyer.

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Craig Westfall

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