When is it Time to Consider Guardianship for an Aging Parent? 

It can be painful and emotionally taxing to face a parent’s physical and mental decline. If you find yourself in this situation, you may be wondering if it is time to consider guardianship for an aging parent.

Illinois guardianship laws seek to ensure “maximum self-reliance and independence” within the guardianship process while protecting the ward, as the disabled person in need of guardianship is called.  If your parent needs special assistance with daily or financial needs, an experienced Illinois estate planning attorney can help you decide whether this step is right for your family.

How Can Guardianship Protect Your Family?

Guardianship is a legal process put in place to protect loved ones who are no longer able to properly care for themselves because of age-related mental issues or disability. Guardianship puts in place a trusted

individual who is responsible for taking care of the health, support, and maintenance of the ward. 

Types of Guardianship

For aging parents, there are two primary types of guardianships that can help protect your family depending on your circumstances: 

Guardian of the Estate

• Appointed when a ward cannot make decisions about their finances
• Manages the ward’s finances
• Requires court approval for spending 
• Spending must only be in the best interests of the ward 

Guardian of the Person  

• Appointed when a person cannot make decisions about their own personal care
• Manages the ward’s personal care, including food, housing, medical and other daily needs
• No requirement to live with the ward

Additionally, guardianships may be tailored to the individual needs of the ward. A limited guardian makes decisions for the ward only to the extent specified by the court, whereas a plenary guardian is given broader decision-making powers. A court may also appoint a temporary guardian while a guardianship proceeding is ongoing.

How Do You Put a Guardianship in Place?

To put a guardianship in place, you must go through a court process. First, the “interested person” files a petition for guardianship and includes a report that details the impaired person’s capacity. The court holds a hearing during which it reviews evidence about the person’s mental and physical health, finances, and housing. A representative of the court called the guardian ad litem may also present a report on the necessity of guardianship. At the end of the process, the court will determine whether a guardian

should be appointed.

When Should You Consider Guardianship?

The key consideration is whether your parent is able to take care of their own important personal and financial lives. There are a few signs that may indicate that your aging parent’s abilities are significantly impaired and it may be time to consider guardianship:

• Growing cognitive impairment: Does the ward suffer from Alzheimer’s or dementia?
• Problems managing finances: Has your parent forgotten to pay bills such that they have faced legal issues?
• Problems managing medical care: Is the parent unable to remember to take necessary medications?
• Unsafe home: Is the person’s physical or mental disability impairing their ability to live in a safe home? 

Should You Have a Power of Attorney in Place?

In Illinois, an individual can put in place a Power of Attorney for Healthcare to empower another trusted individual to make healthcare decisions on their behalf in the event they become mentally incapacitated. A Power of Attorney for Healthcare must be put in place by the person who seeks the assistance when they have the mental capacity to do so. There are pros and cons to both a Power of Attorney for Healthcare and a guardianship.

Guardianship Cons

• More expensive than a power of attorney
• Stricter procedure and oversight 

Guardianship Pros

• More protective than a power of attorney
• Overseen by a judge
• Guardianships carry more authority with financial and medical institutions 

Power of Attorney Cons

• Must be executed prior to incapacitation
• More easily abused because they can be secretly executed
• Hard to recover mismanaged funds

Power of Attorney Pros

• Less expensive than a guardianship
• Requires little oversight
• Can be very effective if the person acting with the power of attorney is good

Figuring out the right type of protection for you will depend on your particular circumstances. Generally, when there is both a valid Power of Attorney for Healthcare and a guardian, there is no need for a guardianship if the existing agent is acting appropriately and the power of attorney is sufficient to meet all the needs of the ward. 

Should You Have a Health Directive in Place?

An advanced health directive lays out how you want to make a medical decision in the event you are incapacitated and cannot make decisions yourself. It is possible to have advanced directives in place even when there is a guardianship. In fact, it may be a good idea to put advanced directives in place if you have specific wishes about your medical care. If you have advanced directives, a guardian will be bound to abide by the decisions you made in these advanced directives. Some advanced directives include:

• Living Will
• Mental Health Treatment Preference Declaration
• Do Not Resuscitate (DNR) order

Who May be an Aging Parent’s Guardian?

At a minimum, the legal requirements to be a legal guardian are that the individual:

• Be over 18 years of age
• Be a U.S. resident
• Be of sound mind
• Not have a disability
• Not have been convicted of a felony

A guardian may be an individual or a care management organization. Family members and friends may be appointed as guardians. A court may also appoint multiple guardians for both the estate and the person or appoint one guardian for each. 

What Are the Guardian’s Legal Responsibilities

In addition to their responsibilities taking care of the ward, a guardian is required to comply with strict rules, including filing legal reports with the court, keeping track of the ward’s assets, managing their finances, and paying their taxes. A guardian is also required to ask the court for permission to take certain actions. 

Can a Guardian Also be a Beneficiary?

Under Illinois law, a person’s guardian may also be a beneficiary under a will.  

Contact a Naperville, IL Estate Planning Attorney

If you have an aging parent and are wondering whether guardianship may be the best way to care fortheir personal or financial lives, the Gierach Law Firm brings over 30 years of experience and can advise you on the appropriate course of action. The Naperville, IL guardianship lawyer has the expertise to guide your family during this difficult time. Call 630-228-9113 to schedule a consultation about your estate planning and guardianship needs.