Power of Attorney and Guardianship: What to Do When Parents Need Help

As parents age, they often seek help with daily tasks such as managing their finances, filing taxes, keeping medical appointments, and maintaining their overall health. To provide this crucial support, families can choose between two main legal routes: becoming an agent under their power of attorney or being appointed their legal guardian through the court. This article examines these choices, their repercussions, and effective ways to prepare for them.

Powers of Attorney

A power of attorney serves as a crucial legal instrument that enables a principal to select an agent who will make decisions and take actions on their behalf. This adaptable document can be designed for specific needs or encompass a wide range of tasks. It may apply to a single event, such as executing a real estate deal, or provide for continuous management of personal affairs. With powers of attorney, individuals enjoy the benefit of flexibility, as they can revoke or alter the document whenever necessary, ensuring that the principal maintains authority over their choices. It is important to understand the two main types available.

• Healthcare Power of Attorney: Allows the agent to make decisions regarding the principal’s medical care, living situation, and daily care.
• Durable Power of Attorney: Allows the agent to handle the principal’s financial affairs, such as accessing bank accounts and paying bills.

Key Points About Powers of Attorney

• The principal must have the mental capacity to understand the document they are signing.
• It is advisable to sign powers of attorney when drafting a Will.
• There is no registry for powers of attorney, so the principal should keep a copy in a safe place.
• A properly executed power of attorney can save time and money for the family.

In situations where a parent cannot establish a power of attorney and their mental capacity is declining, seeking guardianship is the viable alternative.

Guardianship

Guardianship involves being legally responsible for someone who cannot care for themselves. It requires a court appointment and comes in two forms: guardianship of the person and guardianship of the estate.

• Guardianship of the Person: Allows the guardian to make healthcare decisions and living arrangements for the disabled adult.
• Guardianship of the Estate: Allows the guardian to manage the disabled adult’s financial affairs.

Steps to Obtain Guardianship

Considering obtaining guardianship? it is crucial to consult with an attorney specializing in this area.

Be prepared with the following information:

• Personal Details: Your loved one’s address, telephone number, and date of birth.
• Family Information: Names and addresses of your loved one’s family members (spouse, adult children, siblings).
• Asset Estimates: An estimate of your loved one’s assets, including home, car, bank accounts, and investments.
• Income Estimates: An estimate of your loved one’s income from pensions, social security, disability, etc.
• Medical Report: A recent doctor’s report stating that your loved one requires a guardian due to their inability to make personal or financial decisions.

Requirements to Become a Guardian in Illinois

The Probate Act (755 ILCS 5/11a) governs guardianship requirements and procedures. In Illinois, the petitioner must meet specific criteria:

• Age and Legal Status: The person who wants to become guardian (the petitioner) must be over 18, not have any felony convictions, and never deemed incapacitated.
• Medical Evaluation: The disabled adult must be evaluated by a licensed physician who will complete a “Report of Physician” form, detailing the disability and recommending guardianship.
• Court Petition: The disabled adult must be served with the court petition and notice of their rights.

Role of the Guardian ad Litem (GAL)

In many cases, the court will appoint a Guardian ad Litem (GAL), who acts as the court’s eyes and ears. The GAL will:

• Visit and Assess: Visit the disabled adult, read them their rights, and speak with family members.
• Report to Court: Provide a report advising the judge on the necessity of guardianship and the suitability of the petitioner.

Court Hearing and Appointment Process

• Hearing Attendance: The petitioner and their attorney must attend the court hearing to be appointed as the guardian.
• GAL Report: If a GAL was appointed, they will present their report to the court.
• Judge’s Decision: The judge will ask the petitioner questions under oath. If the judge deems the disabled adult needs a guardian and the petitioner is qualified, the petitioner will be appointed guardian.
• Letters of Office: The court issues this document, allowing the guardian to act on behalf of the disabled adult.

Post-Appointment Responsibilities

• Appointment Timeline: After the appointment, the case remains open until the guardian is discharged.
• Annual Reporting: The guardian of the person must report annually on the disabled adult’s well-being. The guardian of the estate must file annual accountings showing how the money is used.
• Court Approval for Major Decisions: Major decisions, such as moving the disabled adult, selling property, or spending money outside the budget, require court approval to ensure the guardian acts in the disabled adult’s best interest.

By following these steps and consulting with a specialized estate planning attorney, you can navigate the guardianship process effectively and ensure the best care for your loved one.

Comparison: Powers of Attorney vs. Guardianship

Conclusion

Planning for the care of aging parents is crucial. While powers of attorney offer a flexible and private way to manage a parent’s affairs, guardianship provides a court-supervised solution when a parent can no longer make decisions independently. Consulting with an experienced attorney can help navigate these processes and ensure the best care for your loved ones.

At Long Law Group, our dedicated attorneys focus on Estate Planning and Estate Administration, providing you with the necessary support to secure Power of Attorney or establish Guardianship while actively walking you through each step to protect the welfare of your loved ones.

Contact us at contact@jlonglaw.com or 312-344-3644 to discuss your particular case.