When an individual becomes the sole decision maker with respect to another person’s finances and personal decisions, such as healthcare and financial decisions, it is referred to as a guardianship. A typical example of a guardianship is that of an adult child becoming the guardian of an aging parent with Alzheimer’s.
In order to become a guardian, you must demonstrate that the “ward” is disabled and unable to care for themselves or their property. To begin the process of obtaining guardianship, which is ultimately granted by a judge, you must file a petition with the court, together with several other required forms in the county where the ward lives. Note that the ward must live or own land in Illinois in order to file for guardianship in the state.
Two initial requirements to become a guardian are that you are at least 18 years old and a U.S. resident but guardianship can be denied if you are determined to be “of unsound mind,” or disabled, or have been convicted of a felony.
Next, you must provide proof that guardianship is necessary, which can be difficult if the potential ward is in denial about needing such help. So, that is where doctors and psychiatrists come in and present their opinions to the judge. To protect the potential ward’s interest, they may be given an attorney and/or a guardian ad litem during the process.
There are two types of guardianship – guardianship of the person and guardianship of the estate – and you can seek one or both.
Guardianship of the person is where you have decision-making power with respect to healthcare and living arrangements. For this type of guardianship, you must show that the potential is unable to make an informed decision about such things.
Guardianship of the estate is where you have decision-making power with respect to financial matters. For this type of guardianship, you must show that potential ward is unable to manage his or her finances, such as paying bills and maintaining a checking account. This type of guardianship is harder to obtain and can be very complex. So, it is in your best interest to consult an attorney about how to proceed in obtaining guardianship of the estate.
Once guardianship is granted, the guardian is expected to use “substituted judgment,” which means that guardian does what the individual would have done if they were of sound mind, not what the guardian wants to do. The guardian must consider and respect the ward’s moral, philosophical and religious views.
While it is possible to obtain guardianship without the assistance of an attorney, it may be in your and the ward’s best interest to seek counsel. Since court appearances are required as well as a great deal of documentation, an attorney can only help in the process. In particularly difficult cases, such as where the potential ward denies needing help or you are seeking guardianship of a complicated estate, an attorney can assist you in proving your case.