New Law Presumes the Will of a Disabled Person to Be Void

disabled person, Naperville estate planning attorneyIt should come as little surprise that, as people age, many of their mental and physical faculties often begin to deteriorate. While most individuals will maintain reasonable capabilities until the end of their lives, others will require a power of attorney or a guardian to assist them in making day-to-day decisions. For the vast majority of situations, such assistance will have relatively little impact on the person’s previously-created estate plan. If, however, a person has been found to be disabled as defined by the Illinois Probate Act, a new law creates the presumption that any will that he or she drafts is not valid.

As an experienced estate planning attorney, I understand the challenges that you may face once a loved one has been found to be disabled. I am ready to help you overcome those obstacles in a manner that is sensitive to your needs and those of your family.

Who Is Considered a Disabled Person?

The Illinois Probate Act states that a disabled person is an individual over the age of 18 who is not capable of managing his or her person or estate due to mental deterioration, developmental disability, mental illness, physical incapacity, or substance abuse. Once a person has been adjudicated as disabled, the court has the authority to appoint a guardian for the person’s physical care, estate management, or both. There are a number of guardianships from which the court can choose, depending upon the person’s level of disability and need for assistance. The most extreme situations result in the appointment of a plenary guardian, granting the appointee full authority over the disabled person’s estate and physical care.

Updated Law

The new law, which took effect on January 1, 2016, amended a statute that went into effect a year earlier that was designed to protect a disabled person from financial abuse by opportunistic caregivers. Under the new provisions, there is a rebuttable presumption that a will is void if it was created after the testator—or creator—was adjudicated as disabled and:

  • A plenary guardian has been appointed; or
  • A limited guardian has been appointed, along with a finding of the court that testator lacked the capacity to execute a will.

The presumption that the will is void can be “overcome by clear and convincing evidence that the testator had the capacity to execute” when it was executed. In addition, existing law provides a method that allows a plenary guardian or other appropriate person to seek authorization for a disabled person under his or her care to execute a valid will. Doing so, however, can be complex and should only be attempted with the assistance of a qualified legal professional.

Work With an Experienced Team

If you or a loved one is currently dealing with health concerns that could potentially lead to an adjudication of disability, contact a skilled Naperville estate planning attorney. We can help you develop a strategy for protecting both your assets and independence in a manner that is responsible and cognizant of your needs. Call The Gierach Law Firm today at 630-756-1160 to schedule an appointment.



ILGA Documents