If you become unable to manage your affairs a
Guardianship can be set up to provide for your care, and the management of your finances.
Guardianship is usually initiated through an attorney by a close friend or family member.
One or more such persons can be selected by the court to serve as Guardian. Occasionally
the court appoints a bank or trust company to serve as Guardian of your estate (i.e., your
finances).This page is a service of FamilyEstate Illinois.
Institutional Guardians are typically used when family and friends are unable or unwilling to serve, they reside out of state, or the cost of a surety bond (generally required of individual Guardians) relative to the bank or trust company’s fees make an institutional Guardianship attractive. Institutional Guardians typically charge the Guardianship estate 1% per year of estate assets.
The Guardianship proceeding begins with a petition for Guardianship. The petition may include background, family and financial information about you. An evaluation report by a physician is included with the petition, and the court may appoint one or more experts to evaluate you.
The court may also appoint a temporary Guardian, an attorney to represent you during the Guardianship proceeding, and a Guardian ad litem. A Guardian ad litem is an attorney or qualified professional charged with independently advising the court about your circumstances, and the need for Guardianship.
The Guardianship estate incurs fees for an attorney when needed for representation before the probate court. Although the Guardian is authorized to pay recurring expenses on behalf of the person under Guardianship, unusual expenses require specific court approval. The Guardian from time to time prepares inventories and accountings required by the probate court.
Guardianships for adults can often be avoided by preplanning with Living Trusts and Powers of Attorney. Even if you have a successor Trustee appointed to act under a Living Trust (who can take over your financial responsibilities in the event of disability) it is nonetheless advisable to have a Health Care Power of Attorney to provide for your personal care and health care. A Property Power of Attorney is also advisable to take care of property not transferred to the Living Trust prior to your disability.
If a Guardian is nonetheless needed the selection of someone to serve is done more efficiently by a prior written declaration. Otherwise the probate court would have to hold one or more hearings to select a Guardian. Guardian nominations can be made in Will and Power of Attorney documents, or in a separate written declaration. To be fully effective the declaration should conform to the witnessing and attestation requirements of Wills.
Guardians for minor or disabled children may also be required in the event they acquire substantial assets outright (vs. in trust), as in the case of inheritance or settlement of a lawsuit. You can nominate such guardians in the same manner as you would do for your own Guardian.
Another advantage of nominating a Guardian is that you can specify waiver of the Guardian’s bond or surety – which in some cases may make it more efficient for someone you trust to act as your Guardian.
For basic information about Guardianships from the Illinois Guardianship and Advocacy Commission click here.