How Can I Obtain Guardianship Over My Elder Parent?

How Can I Obtain Guardianship Over My Elder Parent?

Provided By: Alan G. Orlowsky

Most people expect their elders to live long, happy lives. However, medical conditions like dementia and Alzheimer’s may set in to the point where these individuals may no longer be able to take care of themselves and make proper decisions.

Without a living will or power of attorney for healthcare and finances, families of incapacitated elders may need to seek court orders to ensure their loved ones have their best interests ensured. The process can often be more complicated than expected, as courts must consider if guardianship is truly in the best interest of the elder.

Under what circumstances can I become a guardian for my elder?

Under Illinois law, only disabled persons may be placed under guardianship of another. Persons placed under guardianship of another are known as “wards.” Criteria for disability in Illinois means an individual is over 18 years old and cannot care for themselves because of:

  • A mental illness or deterioration;
  • A physical incapacitation; or
  • A developmental disability.

For an individual to qualify as a guardian, he or she must:

  • Be older than 18;
  • Live in the U.S.;
  • Be of sound mind;
  • Not be disabled him or herself; and
  • Not be a convicted felon.

Disability is a medical diagnosis and requires a physician’s opinion. Only with medical documentation will courts even consider whether or not to appoint guardianship over a ward.

Are there different kinds of guardianship?

In Illinois, there are two kinds of guardianship: guardianship of the person and guardianship of the estate. Courts may award guardianship of one or both of these areas but often times one individual acts as guardian in both areas.

  • Guardianship of the person – Decision making that covers aspects of the ward’s physical care, including health care and living arrangements.
  • Guardianship of the estate – Handling matters of money, income, property, taxes, and other financial circumstances.

Legal process for guardianship

Before being declared disabled and placed as the ward of a guardian, individuals retain all of their legal rights to due process. Either they may acquire their own legal representation or have a Guardian ad Litem appointed by a judge to look out for their best interests.

The legal process for guardianship over an elder usually plays out in three steps:

  • The would-be guardian files a Petition for Guardianship in court, accompanied by a physician’s diagnosis of the disability. The diagnosis must be submitted within ten days of the hearing date.
  • The disabled individual is informed of the time and place of the hearing.
  • A hearing is conducted, at which time a judge may rule whether the individual is disabled and to what extent guardianship will be entrusted.

Chicagoland elder law attorneys

If you feel your beloved elder is disabled to the point where he or she cannot care for him or herself in a financial or physical manner, you may need the services of an experienced Chicagoland elder attorney. For over 25 years, the attorneys of Orlowsky & Wilson, Ltd. have aided clients in the areas of elder law, estate planning, and probate law.

Contact our office for a consultation about your case. Our attorneys serve clients in Northbrook, Evanston, Skokie, Glenview, Glencoe, and Highland Park.

 

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