by Steve Raminiak, Esq.
This article provides general information about Guardianship of a disabled adult in Illinois. However, similar rules apply in many other States. For legal advice about your particular circumstances, please consult with an attorney.
If a loved one suffers from a developmental disability, or can no longer make decisions due to injury or illness, you will eventually consider whether to apply to be his/her Guardian. While each situation is somewhat unique, your experience with a Guardianship1 Court will likely depend on answers to the following questions.
1. Is this trip really necessary? If your loved one’s disability did not begin in childhood, s/he may have signed Powers of Attorney which allow others to make decisions after s/he has lost the ability to do so. If possible, look through your loved one’s records for these documents. Redouble your efforts if you find a Will or a Trust prepared by a lawyer, as Powers of Attorney are often prepared to accompany those items. However, your loved one cannot dodge Guardianship by signing new Powers of Attorney if s/he presently lacks the capacity to make decisions.
2. Will anyone object? The first steps in a Guardianship can be either pleasant and somewhat inexpensive or tortuous and extremely costly. The difference primarily depends on whether your loved one will object to a Guardianship and/or if a family battle will arise over who shall be the Guardian. Either fight will cause a great deal of strain on family relationships and generate legal fees far above that of a Guardianship where all peacefully consent.
Furthermore, once you start the process, the Court may see it through to the bitter end. If the State has been alerted about a person who may be mentally disabled, some Judges take the position that it would be irresponsible and unjust to allow such a person to slip through the proverbial cracks unless a Guardianship is clearly unnecessary. In practical terms, this means that a Guardianship proceeding may continue even if the family member who has filed the initial petition has caused a deep rift in the family and no longer wants to be involved.
Even worse, if you started the Guardianship process, you not only continue to be responsible for your own attorneys’ fees, but you may also become obligated to pay the fees and expenses of other attorneys appointed by the Court, even if you no longer want to be involved. For example, in Cook County, Illinois, a separate attorney is often appointed as a Guardian ad Litem to interview all involved, report to the Court, and perform any other task that the Court might find helpful. If your loved one resists Guardianship, an Illinois Court will likely appoint another attorney to assist him/her in defending against your Guardianship petition. If your loved one lacks funds to pay for these professionals, or if a Guardianship is unnecessary, the Court will determine who is responsible for their fees. In some states, including Illinois, their fees may be assigned to YOU!
Additionally, if you engage in litigation with another family member about who should be Guardian, and the Court finds that both of you are fit for the position, a Judge may block either side from recovering attorneys’ fees for that battle from your loved one’s Estate.
3. When should you consult with an attorney? Usually, close family members can detect the need for a Guardian long before it becomes immediately necessary. I strongly suggest that you work with an attorney who is experienced in this area so that you can strategically choose when to start the Guardianship process and how to handle other members of your family. By doing so, you minimize the chance that a “crisis” will erupt which could turn a simple, friendly process into an expensive nightmare.
It is helpful when time is on your side. When I have been appointed as a Guardian ad Litem, I have often seen how unfortunate circumstances could have been avoided if greater care was taken at earlier stages. It’s never too early to consult with an attorney about Guardianship and how you can navigate through this muddy, technical area as easily, harmoniously and cost-effectively as possible.
4. How much will this cost? Attorneys’ rates and Court fees vary by county and State. In Cook County, Illinois (Metro Chicago), attorneys’ hourly rates usually range from $225 – $300 per hour. In 2012, an “uncontested” Guardianship (where all peacefully agree or remain silent) can often be established in Illinois in less than 10 hours of an attorney’s time during a period of about 40 days. I would not hire an attorney who does not regularly address Guardianship matters. You will likely be unsatisfied with the results. The unusually technical nature of Guardianship proceedings often confuses attorneys who do not often practice in this area. If your loved one has funds and consents to the Guardianship, s/he will probably be responsible for paying all legal fees and costs. However, if a Guardianship becomes “contested,” as described above, the legal fees can skyrocket and you may be held personally liable for some or all expenses.
As you consider this, I strongly encourage you to speak with an attorney who has years of experience with Guardianships. If your loved one lives in Illinois, feel free to contact me, even if you intend to use another attorney. I always provide free consultations.
1 Guardianship is a general term and may be referred to as Conservatorship in some states.
The Law Offices of Steve Raminiak, P.C. provides counsel for estate planning and the administration of estates and trusts established for decedents, minors and disabled persons. Steve regularly tackles contested estates, and has been appointed as Guardian ad Litem, Special Administrator, and as counsel for minors and the disabled by Judges in the Probate Division of the Circuit Court of Cook County.
Steve serves as a resource for Chicago Volunteer Legal Services (CVLS) by handling pro bono matters and providing direction to volunteer attorneys. He also contributes to Lawguru.com, a site that offers free answers to legal questions. Steve speaks with groups about estate planning and how to assist elderly or disabled family members with financial and legal issues. He also hosts seminars for lawyers about probate procedures.