Imagine your sibling comes to you and shares a concern that a parent has started to show signs of cognitive decline. They’ve become more forgetful, and have trouble recalling certain memories. Your sibling even mentions a more serious incident, where your parent forgot to turn off the stove.
Though they still live independently, pay their bills, drive themselves to lunch, and manage their daily life, your sibling announces that they are filing a petition for guardianship. They claim that your parent is no longer fully capable of caring for themselves.
You disagree.
This is a scenario that is all too common among families.
When appropriate, guardianship can ensure a loved one’s safety and care. But it can also strip them of the ability to make their own daily life and financial decisions. It’s a decision that should never be made lightly.
If you or a loved one is facing the pressure to accept guardianship, it is possible to contest guardianship in Illinois.
What Is Guardianship in Illinois?
In Illinois, guardianship refers to a court-ordered arrangement where one person is given decision-making authority over another, who has been deemed unable to manage their own personal care and/or finances. Once a court makes that determination, the disabled person is referred to as a ward.
In some states, this is called “conservatorship”, but the term used in Illinois is guardianship.
It’s a process that has the potential to strip a person of their autonomy, and should only be entered into when there is no less restrictive alternative.
Types of Guardianship in Illinois
Illinois law recognizes several forms of guardianship, based on the area of control and the level of authority granted to the guardian:
Guardianship of the Person
This type of guardianship gives the guardian control only over the ward’s daily life. The guardian becomes responsible for the ward’s living arrangements, including daily care, as well as their overall healthcare.
Guardianship of the Estate
When the alleged disabled person can no longer manage their own finances, guardianship of the estate may be granted to give full control over the ward’s finances to the guardian. They pay the ward’s bills and manage their income, including any assets or investments they have.
The court can grant the guardian authority over both person and estate, or only one.
Plenary Guardianship
When the court gives the guardians complete decision-making power over the ward, it is called plenary guardianship. It’s the most restrictive type of guardianship and is usually reserved for the most severe cases.
Limited Guardianship
Limited guardianship is another option for the court. This restricts the guardian’s authority and allows the ward to retain some level of decision-making power.
Temporary Guardianship
When guardianship is only needed for a short amount of time, temporary guardianship may be issued. This is most often used in an emergency scenario, or while long-term guardianship is being decided. It can typically last up to 60 days in Illinois.
The Guardianship Legal Process
To begin the guardianship legal process, a petition must be filed with the Illinois probate court.
The person attempting to claim guardianship is known as the petitioner. They’re responsible for proving to the court that the alleged disabled person lacks the capacity to make or communicate their own decisions. A judge will determine whether guardianship is necessary.
Courts tend to be careful with guardianship cases because of how much it can limit a person’s independence. When there are alternatives available, like power of attorney, a judge will often prefer that over guardianship.
Illinois law also ensures that individuals being considered for guardianship have the right to be present at hearings, and be represented by counsel.
Who Can Contest Guardianship in Illinois?
In Illinois, only the alleged disabled person or an interested party can challenge guardianship in court. An interested party is most often a family member, but they don’t have to be directly related.
Sometimes close friends, caregivers, or others with a stake in the matter are able to challenge a guardianship petition.
The best time to contest guardianship is before a guardian has been appointed, but even if an arrangement is already in place, it can still be challenged.
When Is Guardianship Necessary?
Courts do not treat guardianship lightly. For the individual, it means severely restricting their independence. So when is guardianship necessary?
Consider an older adult who has been diagnosed with advanced dementia.
They may no longer recognize family members or remember to take medication. When their condition prevents a person from reliably managing their daily affairs or finances, or creates a safety issue with their home, guardianship may become necessary.
Another way guardianship becomes appropriate is when an individual becomes incapacitated. This could be from suffering a stroke or a sudden brain injury. That person may lose the ability to speak, or may be left in a coma. In these situations, they may no longer be able to manage their life. Temporary guardianship may be appropriate in this situation.
But there are also times when it may be necessary to defend against guardianship. If the individual has become more forgetful, but can still clearly make and understand the consequences of their decisions, guardianship may not be necessary.
Sometimes a better alternative is already in place. Powers of attorney are specifically designed to authorize decision-making in certain cases, such as incapacity. Courts generally prefer these less restrictive alternatives when they are available.
How a Guardianship Litigation Attorney Can Help
When a dispute cannot be resolved informally, a guardianship litigation attorney can help in several ways.
Defending Against Guardianship
Guardianship defense attorneys focus on preserving the alleged disabled person’s independence. That means gathering medical opinions, witness testimony, and documentation that proves the individual still has the capacity to manage their own affairs. Attorneys also push back against overly broad petitions and advocate for less restrictive options.
Challenging Guardianship in Court
Guardianship litigation attorneys help interested parties challenge guardianship in court by building the case and challenging the evidence, representing their clients through the legal process.
Filing a Cross-Petition
Sometimes guardianship is in the best interest of the individual, but there are concerns about the proposed guardian. Filing a cross-petition can raise these concerns and propose a different guardian to better serve the individual’s best interests.
Developing Guardianship Defense Strategies
The best strategies for defending against guardianship often involve focusing on other legal alternatives. For example, powers of attorney often make guardianship unnecessary. A guardianship dispute lawyer can also argue for a limited or temporary guardianship that preserves more independence for the ward.
Terminate Guardianship
When an individual has regained the capacity to make their own decisions, a lawyer can help with how to terminate guardianship. The process typically requires updated medical records and a court hearing, where a judge will review the evidence and make a ruling on whether guardianship should continue.
Staza Law: Illinois Guardianship Litigation Attorneys
Guardianship is intended to protect those who can no longer care for themselves, but that doesn’t always mean it’s the right option for every situation. Sometimes, those seeking guardianship may be seeking too much control or may not be suitable for guardianship.
At that point, contesting guardianship can become necessary to preserve an individual’s autonomy.
Whether you are seeking to defend yourself against guardianship, or protect a loved one from an overly broad arrangement, an experienced attorney will help you navigate the guardianship legal process.
Staza Law helps families in the Chicagoland area understand guardianship rights and challenge guardianship in court.
Contact our team today to discuss the specifics of your case, and let us help you work toward a solution that protects your loved ones’ rights.
**Disclaimer**
The content of this blog is for general informational purposes only, and does not constitute legal advice. Please consult with a qualified attorney for advice specific to your situation.