Disabled Adult Beneficiaries May Require Guardianship Petitions

guardianship, probate, Illinois estate planning attorneyIllinois law recognizes that not every adult is capable of making decisions – whether personal or financial – for himself or herself. People in these situations often need someone looking out for their interests, especially when such interests become the subject of a legal proceeding.

One common example arises whenever a disabled adult is named as a beneficiary in a will. If someone contests the validity of the bequest, or makes some kind of legal challenge to the will, then the disabled adult might need someone to represent his or her interests in court. Typically this “someone” is a court-appointed legal guardian. The Probate Act provides for the appointment of standby, short-term, or permanent guardianships for disabled adults (and for minors):

  • A standby guardian is not authorized to act as an official guardian unless the permanent guardian dies or is otherwise incapable of making decisions on behalf of the disabled person (or minor). The standby guardianship lasts for 60 days or until a new permanent guardian is appointed.

  • A short-term guardian fills in for the permanent guardian when they are unavailable or unable to perform their duties. The short-term guardianship can be terminated at any time and can only last for 60 cumulative days during a 12-month period.

  • A permanent guardian must protect the best interests of the disabled person or minor. He or she makes decisions on the person’s behalf.

Appointing a Guardian

Before appointing a guardian for a disabled adult, the court must establish that the person is, in fact, legally disabled. A “disabled adult” is a person who is at least 18 years old and who has a mental illness, mental deterioration, physical incapacity or developmental disability that renders them incapable of handling their own affairs. Note that when a guardianship petition is filed, the disabled adult may contest the need for a guardian. In fact, recent amendments to the Probate Act seek to ensure that such petitions are credible.

For example, the petition must include a report prepared by a medical professional attesting to the person’s disability. Beginning on January 1, 2015, that report must include more identifying information about the person(s) who conducted the evaluation. This information is meant to ensure the credibility and integrity of the evaluator(s). Illinois courts are looking to avoid situations where an able adult is deemed disabled due to fraud or coercion.

The law imposes a number of other requirements on would-be guardians, including an 18-year age threshold and intolerance toward certain felony convictions. In other words, if you are a minor and/or convicted of committing a disqualifying felony, you cannot be a legal guardian.

If you are seeking a guardianship for a disabled adult or minor to represent his interests during a probate proceeding, contact one of our Naperville estate planning attorneys today. We can assist those in the Naperville area.