In almost every part of the law, a person must be mentally competent. It means the person must understand what they are doing or signing rationally. For example, competency is required to enter into a contract, finalize an estate plan, and more.
If you have a loved one that may need to be declared incompetent, below is essential information. For assistance with declaring an incompetent person, the Lake County estate planning attorneys at Orlowsky & Wilson can help you.
Many of us wait until our 70s or 80s to draft estate plan documents. That is why some people are fading mentally when they make their plans. Or, they could come down with an illness or disease that affects their ability to understand the situation or document.
Competency also can involve someone’s physical condition. For example, your loved one may be in a coma or vegetative state. As a result, they are not competent in making critical life or estate planning decisions. Also, Illinois state law has provisions to address those who waste their assets to the detriment of their family. For example, a person can be declared incompetent in Illinois because of excessive drug or alcohol use.
This situation can be complicated when a person is no longer competent but denies it. If that happens, it may be necessary for the court to declare the person incompetent.
Sometimes, a disgruntled person will try to have someone declared incompetent. For example, suppose someone is left out of a will; the adversary may try to have the person declared incompetent. In other cases, family members may have someone declared unfit to protect their rights and ensure their finances are properly managed.
If you challenge someone’s competency, you must file a petition for guardianship in the appropriate Illinois court. This petition asks the Illinois court to appoint someone as the guardian for the mentally incompetent person. Then, this person would manage the disabled person’s financial and legal matters.
For the petition to have legal force, it must have a report from a physician stating that the person cannot make decisions themselves. The report also must detail the disabilities the incompetent person has. Also in the document should be the person’s skills and education and how their illness or disease affects their mental competence. The report should also have a recommendation about the type of guardianship required.
Next, the Illinois court will appoint a guardian ad litem. This is a neutral third party who views the incompetent person. The guardian will obtain records, contact the person, talk to friends and family, and make an independent decision about the person’s competence. Every party can challenge the report the guardian ad litem makes.
If you have a loved one that may need to be declared incompetent, this is a delicate and stressful situation that must be handled carefully. The Lake County estate planning attorneys at Orlowsky & Wilson can help.
Our attorneys serve the communities of Lake County, Chicago, Libertyville, Northbrook, Gurnee, Glenview, Grayslake, Lake Zurich, Lake Forest, Buffalo Grove, Vernon Hills, Highland Park, Wilmette, Deerfield, Arlington Heights, and Wilmette. Contact our Lake County estate planning attorneys at (847) 325-5559 if you have legal questions about declaring someone incompetent.