Determining Capacity in a Guardianship Proceeding

  • Robert S. Thomas,
  •   Probate
  •   None

 

The aging process can lead to incredibly difficult decisions that have to be made on behalf of our loved ones. This can include the following – they cannot make critical medical decisions for themselves, or they cannot manage their day-to-day care. It can also include when a person loses the ability to make financial decisions, or pay bills.

This is why when an adult becomes mentally or physically disabled to the point that they can no longer make decisions for themselves, the law provides for the appointment of a guardian. Specifically, the Probate Act of 1975, Chapter 11a-3 states that:

If the court adjudges a person to be a person with a disability, the court may appoint (1) a guardian of his person, if it has been demonstrated by clear and convincing evidence that because of his disability he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the care of his person, or (2) a guardian of his estate, if it has been demonstrated by clear and convincing evidence that because of his disability he is unable to manage his estate or financial affairs, or (3) a guardian of his person and of his estate.

In other words, to become the guardian of a person and to gain the court-ordered ability to make decisions regarding the care of a person, you must demonstrate that “because of his disability he lacks sufficient understanding or capacity to make of communicate responsible decisions…” Despite the significance of this finding, there is no explicit definition of what capacity means.

Case law has addressed the question, with the 4th District Court stating that “capacity” “does not denote that the ward must literally and physically have the capacity to care for himself” but that “the ward must have sufficient understanding to make or communicate responsible decisions concerning the care of his person.” Estate of Fallos, 898 N.E.2d 793 (4th Dist. 2008). Nevertheless, capacity really is settled on a case by case basis and is in the discretion of the court based on the evidence presented.

A Doctor’s Report is Essential to Establishing a Lack of Capacity

One of the critical pieces of information that courts rely upon in determining capacity is evaluations by doctors. 755 ILCS 5/11a-9 of the Probate Act requires that a petition for appointment of a guardian must be filed with an accompanying report prepared and signed by a licensed physician that contains: “(1) a description of the nature and type of the respondent’s disability and an assessment of how the disability impacts on the ability of the respondent to make decisions or to function independently; (2) an analysis and results of evaluations of the respondent’s mental and physical condition and, where appropriate, educational condition, adaptive behavior and social skills, which have been performed within 3 months of the date of the filing of the petition; (3) an opinion as to whether guardianship is needed, the type and scope of the guardianship needed, and the reasons therefor; [and] (4) a recommendation as to the most suitable living arrangement and, where appropriate, treatment or habilitation plan for the respondent and the reasons therefor.”

Contact an Experienced Attorney for Assistance

Despite this requirement and the importance of this document and the physician’s opinion, the court must also give weight to the testimony of witnesses regarding the person and his or her ability to make responsible decisions about his or her own care. This is why it is important to speak with an attorney if you need help to make decisions for a loved one. Contact The Law Offices of Robert S. Thomas for legal guidance. Estate planning and probate are complex, but necessary processes, and it is crucial that you hire an attorney who can effectively represent you. As an attorney with over twenty years of probate and estate planning experience, I can help you. Contact my office at 847-392-5893 to schedule a consultation or visit our website today.

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