Guardianship is a very old legal principle that has its origins in the very first civilizations. Human beings have long recognized the need for those who are too old, too young, or are too impaired by injury, illness, or disease, to make reasonable and responsible choices for themselves. Our laws are ideally supposed to protect the weak when they are in vulnerable situations, and the Law of Guardianship evolved for that purpose.
Different states and jurisdictions have slight variations on the theme, but generally, anyone who lacks the capacity to make responsible and reasonable decisions may be in need of a legally and formally created "protector."
Such persons are known at law as "Wards," and those responsible for looking after them and taking care of their property and personal health needs are called "Guardians." There are a number of different scenarios in which a Guardianship may need to be established.
If your elder loved one has dementia or another illness affecting the mind, it may be that they are unable to make reasonable decisions about property and healthcare. If that is the case, a Guardianship may be right for your family.
Guardianship is often also appropriate in cases where an injury or disability impact the decision making ability of your loved one.
At law, capacity is an awareness of who you are, where you are, the date and year, major figures and events occurring around you, and a clear understanding of the extent of your property and things. We call this generally - in many fields - "three times oriented" (Who, Where, When), and in the field of mental health, it is established by a "mental status exam."
The difference between the legal version and the medical/psychological version is subtle, but it is key - the Law addresses issues of property and knowing what you are doing with your property. The law also considers whether you have a reasonable understanding of the consequences of your actions.
Generally, a lot of people are theoretically eligible to be a guardian under the law, but that isn't without its caveats and exceptions. A person would have to be of the age of legal majority (18 years or older), not themselves already the ward of another Guardian, and willing and able to take on the responsibilities of the Guardianship. It is also very advisable to choose a Guardian without any prior felonies - especially with respect to financial crimes or crimes of deception.
Sometimes, different, well-meaning parties disagree about how best to care for a loved one. Guardianship contests can arise where a prospective ward objects to the legal proceeding, or where a special court officer, known as the Guardian ad Litem, finds that the ward is not in need of guardianship. Such scenarios are not always cut-and-dried, and you may want to seek legal expertise if you are facing a scenario like this.
One of the first ways we often learn that a loved one's medical or other condition is affecting the ability to make reasonable decisions is our own direct experience. We may notice gaps in memory, periods of confusion, and a phenomenon known as "sundowning."
Such issues have to be addressed by licensed and competent medical providers, and in order to move forward with Guardianship in Illinois, a physician's report will need to be filed under seal with the Probate Court in advance of the Plenary Guardianship hearing.
Many solutions exist, including in home evaluations available through many state services providers. Certain scenarios demonstrate that a potential ward may be a danger to themselves and others, and these can trigger interventions by law enforcement and first-responders. Talk with skilled counsel to learn more.
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