For almost everything in the law, competency is required. Competency doesn’t mean that a person is educated, or that they have a high IQ. It just means that a person can rationally appreciate what they are doing. Competency is required to enter into contracts, give testimony in court, or get married.
Competency and Estate Laws
Unfortunately, many people wait until they are older to draft vital estate documents or to make estate plans. As a result, many people when they make estate plans may have fading mental capacity, or worse, they may be stricken with a disease that affects their ability to comprehend or understand what they are doing or saying.
Competency can also be physical. Someone who is comatose, or in a vegetative state, is obviously not competent to make important life decisions about their own affairs.
Illinois law also includes people who waste their own assets, to the harm of their family, because of excessive alcohol or drug usage to be incompetent.
Who Challenges Competency?
The situation is especially sad when someone loses competency for any reason, but won’t admit it or can’t see their own disabilities. When that happens, it can be on others to request the court declare someone incompetent.
Sometimes, someone in an adversarial position will try to declare someone incompetent, such as when someone left out of a will tries to say that the person making the will was not competent to do so. Other times, loved ones or family members will try to have someone declared incompetent, as a way of protecting them and making sure their assets are managed properly.
Filing the Guardianship in Court
Whoever is challenging competency, or who is seeking to have another declared incompetent by a court, will have to file a petition for guardianship in an Illinois court. This is a petition that asks the court to appoint someone, usually the person filing the petition, as the disabled person’s guardian. Then this individual would assume the duties of managing the disabled person’s life and financial affairs.
The petition must include a report by a doctor, saying that the person cannot make decisions by himself. The report must describe any disability the person has, the person’s education and skills, and how the disease or illness affects the person’s competency.
The doctor’s report will also have recommendations as to what kind of guardianship is needed, and any other arrangements that should be made for the allegedly incompetent person.
Sometimes, the allegedly incompetent person will refuse to submit for a doctor’s examination. If that is the case, you can still file the petition, and ask the court to order the person to go before a doctor for an examination for competency.
Appointment of a Guardian ad Litem
The court will appoint what is known as a guardian ad litem. This is a neutral, unbiased examiner whose job it is to look at the allegedly incompetent person neutrally, to see if they are unable to manage their own affairs, or appreciate their own actions.
The guardian will get records, make contact with the allegedly disabled person, interview friends and family, and then issue a report that will be in favor of, or against, the guardianship.
All parties will have the right to challenge the guardian ad litem’s report. If the judge declares someone incompetent the judge will also determine whether the person is completely incompetent, or whether a guardian should be appointed only for limited, specific purposes.
Questions about guardianship or competency? We can help. Call the Chicago estate planning lawyers at Orlowsky & Wilson, Ltd at 847-325-5559 to learn more.
