If you have concerns about a family member’s ability to make responsible decisions for her personal care or finances, you may file for guardianship. Until the late 1970s, a person with a disability in Illinois was declared incompetent, and a "conservator" was appointed by the probate court to take control of her estate and finances. However, the amendment of the Illinois Probate Act in 1979 gave people with disabilities more statutory protection.
Definition of Incompetent
Cornell Law School defines "incompetent" as a lack of legal ability to do something, particularly testify or stand trial. Incompetency may be caused by various types of disqualification or inability, including physical or mental disability. The Illinois Probate Act uses the term "incompetent" only once, when referring to the appointment of a guardian for a beneficiary of the Veterans Administration who has a disability.
Guardianship vs. POA
Power of attorney and guardianship are not the same thing. The most important difference is that people grant power of attorney to a person of their choice, whereas a court appoints a conservator or guardian on a person's behalf. The person who grants a power of attorney does not need to have a disability. However, both options give someone the same authority to make decisions about an individual's financial matters and/or personal care.
Two types of power of attorney exist under the Illinois Power of Attorney Act: power of attorney for property and power of attorney for health care. Every form needs to be signed with at least one witness to be considered legal within the state.
Guardianship may take different forms, such as plenary guardianship, when a guardian is given the power to make all important decisions regarding a person's personal care and finances due to his physical and mental limitations.
Read More: How to Write a Legal Guardianship Document
Guardianship Process in Illinois
In Illinois, guardianship is considered to be a last resort, to be pursued only after all other alternatives have been ruled out. Under the Illinois Probate Act, the person applying for guardianship must obtain a report certifying that the other person has a disability and needs a guardian. Obtain a pre-printed form for the report from the probate clerk of the court where the guardianship proceeding would take place, which must be in the county where the person with a disability lives.
The report must be completed and signed by a licensed physician and any other professionals who are familiar with the person with disabilities, one or more of whom may be required to testify in court. The report must contain certain information, including a detailed description of the respondent's disability, an assessment of how the disability impacts the ability of the respondent to make decisions or to function independently, and an opinion as to whether guardianship is needed.
After the case is filed, it usually takes between 14 days and two months for the court to make a decision.
- Illinois Guardianship & Advocacy Commission: Guardianship Fact Sheet
- Illinois Guardianship & Advocacy Commission: Guardianship Frequently Asked Questions
- Illinois General Assembly: Illinois Power of Attorney Act
- Illinois.gov: A Practitioner's Guide to Adult Guardianship in Illinois
- Illinois General Assembly: Probate Act of 1975 Guardians for Adults With Disabilities
- Cornell Law School Legal Information Institute: Incompetence
- One way of avoiding the uncontested guardianship process is for the person at issue to grant someone power of attorney over his affairs while he is still competent. Power of attorney confers much of the same authority as guardianship, but avoids the court process of determining competency.
- A guardianship proceeding, or the preparation of a power of attorney, can be complex legal undertaking beyond the scope of this article. Consider consulting with a licensed Illinois attorney to help avoid undesirable or unforeseen outcomes.
Claire is a qualified lawyer and specialized in family law before becoming a full-time writer. She has written for many digital publications, including The Washington Post, Forbes, Vice and HealthCentral.