When an adult has a severe disability, he or she may be unable to make competent decisions on his or her own. The disability may leave him or her unable to function independently or stay out of harm’s way. If your loved one is disabled and you worry that he or she may not be capable of making responsible, safe decisions, you may be interested in learning about adult guardianships. Being someone’s guardian is a major responsibility that must be granted by the court. An experienced estate planning attorney can help you pursue guardianship of a disabled adult.

When Can Someone Become a Disabled Person’s Guardian?

A guardian is a person or an institution that is tasked with managing a disabled person’s affairs. Illinois courts only appoint someone to be a guardian if the individual has established that they will act in the best interests of the disabled person or “ward.” Disabilities that qualify a person for guardianship include physical disabilities, developmental disabilities, mental illnesses, and mental decline from conditions such as dementia or Alzheimer’s Disease. Illinois law also allows a guardian to be appointed if a person suffers from a severe gambling addiction or substance abuse problem. In order for the court to award guardianship of a disabled adult, the person’s disability must be severe enough to prevent the person from making and expressing sensible decisions.

Adult Guardianship Process in Illinois

In order to gain guardianship of an adult, you must first submit a petition for guardianship with the court. You will also need to obtain a physician’s report or “physician’s affidavit” from a medical professional who has examined the disabled person within the last three months. The report must include information about the disabled person’s incapacity and how it affects his or her functioning as well as the physician’s recommendation regarding guardianship. Next, you will attend a court hearing during which the court will evaluate evidence regarding the need for guardianship. The disabled person and his or her loved ones have the right to object to the guardianship request. If the court determines that the disabled person lacks the capacity to make sound decisions and care for himself or herself, guardianship will be granted. The guardianship duties may be divided between a “guardian of the estate” who makes financial decisions on behalf of the disabled person and a “guardian of the person” who makes medical decisions and decisions about living arrangements.  

A will is often a difficult subject to discuss. In addition to the strong emotions involved when talking about death, discussions surrounding who will inherit what items or assets can cause division among family members. You want your family to be secure and happy, especially while you are still with them. However, you will not always be with them, so it is essential to set clear guidelines for how your assets will be distributed to your beneficiaries, who will be the guardian of your minor children, and how your last wishes should be carried out.

Requirements for an Illinois Will

Under Illinois law, any emancipated minor or adult who is at least 18 years old can make a last will and testament. A person must be of sound mind and memory to do so. For the will to be valid, three requirements must be met: 

1. The will must be in written form, and it may be handwritten, typed, or printed out. Illinois state law does not allow for oral wills.
2. The will must be signed by the individual making the will, who is known as the testator. If the testator cannot sign the will themselves, then another individual who is not a witness can sign it on their behalf, but that person must be in the testator’s presence while doing so.
3. The will must be signed by two or more witnesses who were present at the execution of the will and saw the testator sign it. In Illinois, anyone may be a witness, but it is usually advised that the witnesses be disinterested parties. That is, a witness should be someone who does not benefit directly from the will themselves. This helps to create impartiality if the validity of the will is ever challenged.

What Happens if There Is No Valid Will?

If a person dies without a will, the courts will decide how to divide up their estate among their heirs. Typically, the assets will be divided between the deceased person’s spouse and children, and if they are not married and have no children, it will go to other relatives, such as parents, siblings, grandparents, aunts, uncles, or cousins. If the deceased person has any minor children, a guardian will be appointed for them by the court. In order to ensure that your assets are distributed according to your wishes and that you are able to name a guardian for your children, it is imperative to have a valid will in place.