Guardianship & Guardianship Litigation


The segment of the population that is between 85 and 94 years of age is the fastest growing age group according to the United States Census Bureau. Once you reach the age of 67, your life expectancy is at least 85, and it continues to rise as you celebrate each succeeding birthday. Clearly, we all strive for longevity, because it sure beats the alternative. However, there are some challenges that you may face if and when you experience life as an octogenarian.

As elder law attorneys, we advise clients about the eventualities of aging, and incapacity is not uncommon among the elderly.There are other causes of dementia, but Alzheimer’s disease alone is enough to get your attention. Right around 10% of all people that are 65 years of age and older have the disease, and the figure is 40% among people that are at least 85. Individuals that are experiencing dementia will eventually find it impossible to make sound decisions on their own.

Court-Appointed Guardian

If you do nothing to prepare for possible incapacity, and people close to you determine that you have become unable to manage your affairs, there is recourse. It is possible to petition the state to appoint a guardian to act on behalf of an incapacitated adult. Prior to 1979, the individual that would act in this capacity was called a conservator.The Illinois Probate Act that was passed during that year provided more comprehensive safeguards that ensured the rights of disabled adults. New methods and procedures were put into place, and in essence, the entire system was revamped to address current realities.

In the past, people suffering from incapacity were viewed as incompetent in a sweeping sense, but the new approach compartmentalized the unique needs of each person. They determined that a diagnosis that is indicative of impairment does not necessarily make a guardianship necessary or appropriate. All guardians are not given the same level of empowerment to make decisions on behalf of a ward. The court will deeply delve into each respective case and make a determination with regard to what the incapacitated adults can and cannot do on their own. A limited guardian can be appointed to make certain decisions on behalf of a ward. When the circumstances require a guardian to have sweeping decision-making authority, a plenary guardianship would be granted.There are different types of decisions that must be made on behalf of someone that is incapacitated.

Because of this reality, there are two different types of guardianship: estate guardianship and person guardianship. The court will determine the level of competence as it applies to all of the decisions that can present themselves.A guardianship proceeding can take a good bit of time since the court is so painstaking during the evaluation process. To account for this, the Illinois Probate Act allows for the appointment of a temporary guardian that can be empowered for as long as 60 days while the formal proceeding is being finalized.

Guardianship Drawbacks

It is very comforting to know that our state is so sensitive to the needs of elders that need help making sound decisions. This being stated, there are some drawbacks that go along with a guardianship, and they are readily acknowledged by the Illinois Guardianship & Advocacy Commission.One of them is the fact that it can be quite costly to go through a guardianship proceeding. There are filing and sheriff’s fees, and attorneys will often be brought in, so there are legal expenses. Plus, at the end of the day, the court may empower someone that the disabled person would not have chosen when they were of sound mind. Another drawback is the possibility of family members disagreeing with regard to the correct way to proceed.

Incapacity Planning to Prevent a Guardianship

The state actually calls a guardianship a “last resort” that should be avoided if possible. As elder law attorneys, we specialize in the implementation of incapacity planning strategies that make a guardianship unnecessary. If you seize control of the matter in advance, your wishes will be honored, and there will be no reason for court involvement.When it comes to decision-makers, you can execute a durable power of attorney for health care and a durable financial power of attorney. The agents that you name will have the ability to act on your behalf if and when it becomes necessary. This is a very simple step that is much more efficient than a costly, time-consuming, and potentially contentious guardianship proceeding.On the financial side of things, it is also possible to name a disability trustee if you establish a revocable living trust. This is one valuable benefit, but there are many others.

Contact Garofalo Law Group

If you would like to discuss a guardianship matter or advance incapacity planning with one of our attorneys, our doors are open. Contact us to request a free consultation appointment or give us a
call at (312) 753-6000.