The Illinois Power of Attorney Act defines an incompetent person as, "Any person who, because of insanity, mental illness, mental retardation, old age, physical incapacity, or imperfection or deterioration of mentality, is incapable of managing his person or estate and any person who, because of gambling, idleness, debauchery, or the excessive use of intoxicants or drugs, so spends or wastes his estate as to expose himself or his family to want or suffering." Under these conditions, a legal declaration of incompetence is used to ensure that the person is assigned a guardian to manage his affairs.
Declaring Someone Incompetent
Collect evidence to support a ruling of incompetence based on one of the three conditions defined above. In uncontested applications, it is best to have a physician complete a medical report to be introduced in court. The report must be signed by a M.D. or D.O. licensed in Illinois and contain four assessments: the type of disability and its impact on the person's life, an analysis of the person's mental and physical competency, an opinion as to the need for and type of guardianship, and a recommendation of suitable living arrangements. During contested litigation, the court will order such an evaluation if not already completed.
Obtain and complete the guardianship petition from a county court clerk. The petition should list the names and addresses of all known relatives of the person in question. Pay the required filing fees. In Illinois, fees for guardianship are scaled based on the size of the respondent's estate. The petitioner will also be required to pay the fee for delivering notice to the potential respondent.
Work with the guardian ad litem, who is appointed by the court to provide independent analysis as to whether a guardianship hearing is warranted. In uncontested cases, the guardian ad litem will be appointed to represent the respondent's best interests and the judge will make a final determination of competency. During contested cases, the respondent is entitled to a six-person jury trial and will have appointed counsel.
Upon determination of incompetency, the judge will select an individual to serve as the respondent's guardian. That person may be required to swear an oath or provide a bond as collateral against possible mismanagement of the respondent's estate.