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The Duties and Process of Guardianship

Published by Mark Brynteson

Many of you are caregivers for your spouses, parents, children, and other close loved ones. If you are in that position, you know that being a caregiver comes with many responsibilities and hurdles. If you have loved ones who no longer have the mental or physical ability to care for themselves or make decisions for themselves, a guardianship may be the only route for you to care for them in a comprehensive way.

In a guardianship, the two primary parties are (1) the person with a disability and (2) a guardian. The person alleged to be under a disability is the incapacitated person and needs someone to take care of their daily needs and make their decisions. The guardian is the person appointed by a court to be in charge of the disabled person and is legally responsible for taking care of the disabled persons health-related and personal needs.

You should consider petitioning for guardianship if:

  • You are taking care of a person who can no longer manage their physical needs or their finances.
  • Healthcare professionals have indicated that your loved one no longer has the capacity to make their own decisions
  • You are unable to get things done for your loved one because you do not have legal authority to act on their behalf

What does the legal process look like for guardianship and conservatorship?

  • You will need to get a physician’s statement (there is a court form for this) from the ward’s doctor addressing incapacity and necessity for a guardian
  • You may need to apply for and obtain a bond for guardianship
    • You may be able to waive this bond if you have a parent-child relationship with the disabled person
  • You will then file a petitionfor guardianship
  • The court will then appoint guardian ad litem(or other court-appointed attorney) so that the disabled person’s interests have legal representation through this process
  • After you file, you will also need to serve notice the disabled person their relatives about the guardianship hearing
  • The guardian ad litem will meet with the disabled personto assess the circumstances and to protect the disabled persons interests
  • You will then have a court hearing– the judge will gather information needed, including witness testimony, to make a determination about the guardianship
  • You will then be appointed as guardian
  • After appointment, you will be responsible for annual reportingto the court, as well as renewing your bond if you are the guardian

Duties of a guardian or conservator include:

  • Fiduciary duty to make decisions for the ward’s best interests
  • Cooperate with the court’s oversight in decision-making
  • Ensure bills are paid
  • Ensure taxes are filed
  • Ensure investments are overseen and daily necessities are met
  • Ensure that the ward receives any necessary health care that may be required
  • Ensure the welfare and safety of the ward

What are my options besides a full guardianship?

Sometimes a guardianship is only needed for a limited period or for a limited purpose. There are temporary guardianships, where you can step in as someone’s guardian for a short period in which they are incapacitated. Likewise, limited guardianships can be helpful if there are some rights (e.g., the right to vote) that the ward would like to retain despite needing a guardian.

If you are considering obtaining a guardianship to help you take care of your loved ones, contact Attorney Mark Brynteson to discuss options tailored for your circumstances. At the Law Offices of Mark D. Brynteson, estate planning Attorney Brynteson uses his 35 years of legal experience to help you understand the different elements of an estate plan and determine which of them are most important for you.  Attorney Brynteson is committed to serving people in Northern Illinois, including Belvidere, Rockford, Dekalb and Sycamore.

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