The Duties of a Guardian for an Incapacitated Person

  • Robert S. Thomas,
  •   Estate Planning, Guardianship
  •   Comments Off on The Duties of a Guardian for an Incapacitated Person

As adults, there are few things more difficult than watching our parents and loved ones age. For some of us, we want to remember them in their primes, at their best. Unfortunately, aging can deprive anyone of the ability to live the twilights of their lives on their own terms. When a loved one loses the ability to make good decisions for themselves due to mental illness or impairment, disability, or substance abuse, it can become necessary to seek a guardianship over their person or over their estate.

A Guardianship Can Be Sought Over a Disabled Person

The Illinois Probate Act of 1975, which governs guardianships of adults with disabilities, defines a “Person with a disability” as:

“a person 18 years or older who (a) because of mental deterioration or physical incapacity is not fully able to manage his person or estate, or (b) is a person with mental illness or a person with a developmental disability and who because of his mental illness or developmental disability is not fully able to manage his person or estate, or (c) because of gambling, idleness, debauchery or excessive use of intoxicants or drugs, so spends or wastes his estate as to expose himself or his family to want or suffering, or (d) is diagnosed with fetal alcohol syndrome or fetal alcohol effects.”

Duties of a Personal Guardian

The appointment of a guardian may be appropriate for an adult, if that person becomes unable to make medical decisions for themselves or cannot make sound decisions about their living situation. If appointed a “guardian of the person”, the guardian will have custody of the disabled adult and is responsible for “their support, care, comfort, health, education and maintenance, and professional services as are appropriate.” In addition, if the disabled adult has minor children or dependent adult children, the guardian will have the same custody and duties toward the children if there is no other fit parent to assume those duties.

Duties of a Guardian of an Estate

When an adult becomes impaired or disabled to the point that they cannot manage their own finances, it may be necessary for another adult to become guardian of the estate. Generally, courts are reluctant to make this appointment for small estates, as they take up the courts’ time and can be resolved through other means. However, for estates with some degree of wealth or complexity, the court is more likely to appoint a guardian with the following duties:

“the care, management and investment of the estate, shall manage the estate frugally and shall apply the income and principal of the estate so far as necessary for the comfort and suitable support and education of the ward, his minor and adult dependent children, and persons related by blood or marriage who are dependent upon or entitled to support from him, or for any other purpose which the court deems to be for the best interests of the ward, and the court may approve the making on behalf of the ward of such agreements as the court determines to be for the ward’s best interests.”

An Attorney Can Help You

If you have growing concerns about the capacity of a parent or loved one to make decisions for themselves, you may have to make some difficult decisions. We can help you through this emotional process with a thorough and compassionate approach. I have been an estate planning and tax attorney for over two decades and have a Master of Law Degree (LLM) in Taxation, and a license to practice in the United States Tax Court. Contact The Law Offices of Robert S. Thomas at 847-392-5893 to schedule an appointment or visit our website today.

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