In Illinois, when a person no longer has capacity to make financial or medical decisions, often the result of dementia or Alzheimer’s, but also sometimes due to an accident resulting in traumatic brain injury or cases of mental illness, the family members of the person do not automatically get to make decisions on the disabled person’s behalf. If the disabled person set up springing durable powers of attorney in advance, a power of attorney for healthcare and a power of attorney for property, then those powers of attorney should be activated and the named power of attorney can begin acting. But what happens when powers of attorney were not created in advance?
What Happens When There are no Powers of Attorney
If powers of attorney were not created in advance, then things get more complicated. Some families will attempt to have powers of attorney created even though the disabled person lacks capacity. This is inappropriate and certainly not advisable. Instead, the correct course of action is to seek an appointment of Guardianship with the district Court in the County where the disabled person resides.
How to Get Appointed as Guardian
If you want to be appointed Guardian of a loved one who is disabled, then you will have to open a guardianship proceeding in the Circuit Court. A guardianship petition is brought laying out the disability that makes your loved one unable to make decisions. The disabled person will need to be served notice, and is permitted an opportunity to object to the guardianship appointment. A trial can even be sought in cases where the disabled person (also known as the “proposed ward”) vigorously objects to guardianship and there is a genuine question as to whether the proposed ward has capacity. Medical experts and witnesses can be brought to demonstrate the proposed ward either lacks capacity or has capacity.
Duties of a Guardian
A guardian is a fiduciary role, meaning that there are fiduciary duties that must be upheld. On its most basic level, the guardian must always act in the best interests of the ward. The guardian should ensure the health, safety, and financial well-being of the ward at all times. The guardian should never act in a self-interested manner. The guardian will also be required to file a yearly accounting and/or report of the ward with the Court. For a full scope of duties, it is advisable to speak with a knowledgeable guardianship attorney such as the Lake County guardianship attorneys at Johnston Tomei Lenczycki & Goldberg LLC.
The guardianship can be ended if the ward dies or regains capacity. If a person acting as guardian no longer wishes to be guardian, then the guardian will need to petition the court to be removed as guardian and have a new guardian appointed. It is best to have a new guardian lined up in advance.
Contact a Lake County Guardianship Attorney at Johnston Tomei Lenczycki & Goldberg LLC Today to Discuss Guardianship
If you believe your loved one needs guardianship, and you wish to be appointed guardian, then your next step is to contact a guardianship attorney to get the petition to appoint guardian drafted and the guardianship matter opened in the Court. Contact the Lake County guardianship attorneys at Johnston Tomei Lenczycki & Goldberg LLC today at (847) 549-0600 to discuss the guardianship of your loved one.
Phone Number: (847) 549-0600
Fax Number: (847) 589-2263
350 N. Milwaukee Ave., Ste. 202
Libertyville, IL 60048
223 N. IL. Rt. 21, Ste. 14
Gurnee, Illinois 60031
2100 Manchester Road, Suite 920
Wheaton, IL 60187