Many family members, particularly parents and spouses, assume they automatically become the guardian when a spouse becomes incapacitated or an adult child is disabled due to:
- physical incapacity;
- developmental disability;
- mental deterioration; or
- mental illness.
Other reasons a guardian may be necessary are when the ward – the subject of the guardianship – spends or wastes his or her assets and/or money (i.e., his or her estate) and as a result exposes himself, herself, or the family to suffering. Examples include gambling, debauchery, or chemical substance abuse.
The assumption, however, that you can be the guardian and take over your family member's assets is a mistaken one. You cannot simply become by virtue of your familial status a guardian of your incompetent spouse or disabled adult child. You must petition the court. But before you do, you should prepare.
How to Prepare Before Petitioning Guardianship Over a Family Member
To prepare for the petition, you need evidence. The most important piece of evidence in most cases is a report completed by at least one licensed physician.
There is a form, according to Section 11a of the Illinois Probate Act, 755 ILCS 5/1-1 et seq., that needs to be completed for the report. It is typically obtained from the Probate Clerk at the Circuit Court of the county where the guardianship proceeding will occur.
The report must contain the following information:
- description of the nature and type of disability or incompetence
- an assessment of how the disability impacts the subject's ability to make decisions or function independently;
- analysis and results of the evaluations;
- an opinion and reasons whether and why guardianship is needed;
- a recommendation to the best living arrangement for the subject, including things like treatment facilities or habilitation centers;
- signatures of all persons who performed or otherwise had a role in the production of the report; and
- at least one licensed physician accompanied by a statement of certification, license, or other credentials.
Like in most situations, the more details and support the report contains, the better your chances are that you could be awarded guardianship status.
What is the Basic Process of Guardianship in Illinois?
Once you have the report in hand, you should prepare the petition and other related documents. Each county circuit court may have its own specific practices and rules. For instance, in Cook County, the jurisdiction's rules are found in Part 12 of the general rules of practice, which can also be obtained from the Probate Clerk.
Typically, the petition is filed with the Probate Court Clerk along with the report. The clerk stamps the summons. A copy of the petition, report, and summons must then be delivered to the person – whether it's your disabled adult child or spouse. Copies must also be delivered to anyone else mentioned in the petition, like:
- the person whom the disabled adult child lives with;
- a current acting guardian; or
- a proposed guardian if not you.
Soon thereafter a hearing will be set. At the hearing, witnesses are not often called in Cook County, but they could be. The judge will hear the evidence and then decide.
So, even when you have the right simply because it's your spouse or adult child, you do not have the right to manage his or her affairs. The court must order it. The process can seem daunting and is time-consuming. To make sure everything is executed properly, contact a family law attorney today who has ample experience in both family law and estate planning. It's the best way to ensure you are empowered with guardianship to care for and manage your loved one and his or her estate.
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