When to Consider Guardianship for an Elderly Parent

While not many people like to think about all of the health and lifestyle changes that can come with aging, they are a fact of life. For millions of people here in Chicago and around the country, this makes it important to understand how best to support and care for an elderly parent — including considering legal tools such as powers of attorney and guardianships. 

Over time, older adults often need assistance with vital activities that they once took for granted, from managing their expenses, to taking care of their home, to safeguarding their health. 

The population of Americans aged 65 or older is projected to grow to nearly 88 million by 2050 — and that means more and more adult children will be asked to help out as family caregivers, providing personal care, emotional support, and financial assistance to their aging loved ones.

The Alzheimer’s Association estimates that about 5.8 million Americans are living with Alzheimer’s or dementia, including one in 10 people aged 65 or older. Many older adults struggle with changes to their vision or their physical mobility, which can limit their independence and have a ripple effect on other aspects of their life, including their mental health. 

In addition to these health and lifestyle changes, many elderly adults face unique financial challenges. In some cases, for example, older adults may have been financially dependent on a spouse or parent, making it difficult for them to keep up with expenses and bills on their own. Seniors are also particularly vulnerable to financial exploitation and fraud; a report from CNBC estimates that elderly adults lose about $2.9 billion annually from financial exploitation, with one in ten Americans aged 65 or older becoming a victim of financial abuse.

For many family caregivers, it can be confusing and even frightening to watch as an elderly parent or loved one struggles with their finances, or finds themselves unable to keep up with other activities of daily living. Often, adult children choose to pitch in and help out — only to find themselves taking on more and more responsibilities over time. 

If you’re dealing with mounting bills, the devastating impact of fraud, or an elderly parent who struggles with making or communicating basic decisions, it’s only natural to look for options. That’s when some families begin to consider guardianship as a way forward. 

In simplest terms, guardianship refers to a legal relationship that can be used to protect vulnerable individuals who are unable to care for themselves. Whether you have a child with special needs or an aging parent, guardianship can be a healthy and proactive option for all involved, putting family members in a better position to protect their loved one’s health and assets.

At the same time, however, it’s important to remember that guardianship matters can be complex. Guardianship won’t be the right solution for every situation, and it’s not something to be entered into lightly. 

Considering the best way to help an aging parent or elderly loved one manage their health and finances? Here are some key questions to ask as you look into guardianship for an aging loved one:

Do They Meet the Standards to Qualify for Guardianship?

In Illinois, assuming guardianship of an adult is a legal process — and the person in need of care or support must meet the state’s legal standard for disability. Broadly speaking, a person may be a suitable candidate for guardianship under Illinois law if they are 18 years of age or older and are not fully able to manage their person or estate due to mental deterioration, mental illness, or physical incapacity. The courts may also consider guardianship in cases where a person exposes themselves or their family to “want or suffering” and “wastes their estate” due to “gambling, idleness, debauchery or excessive use of intoxicants or drugs.”

In order to appoint a guardian, the court must find that an allegedly disabled person meets the qualifications described above “by clear and convincing evidence.”

The most important thing to keep in mind is that disability must “prevent the person from making or communicating responsible decisions about his or her personal affairs,” as the Illinois Guardianship & Advocacy Commission has put it. In such cases, “guardianship may be necessary to protect the person and to promote the interests of others, such as service providers or creditors.”

How Much Help Do They Really Need?

It’s important to be thoughtful and realistic about the amount of care, attention, and support your elderly loved one needs. Do they require hands-on daily care at home? Are they able to function around the house, but require significant assistance with paying bills or managing complex financial assets? 

Illinois laws are meant to encourage “maximum self-reliance and independence” for all adults, as the Office of the State Guardian has explained. As a result, guardianships can be tailored to respond to the unique needs and capabilities of the disabled person.

With that in mind it’s crucial to understand a few key concepts about guardianship as you move forward — including the types of guardianship that may be put in place here in Illinois, and the scope of a potential guardian’s responsibilities and duties. 

Depending on the situation, an individual may be appointed to serve as a guardian of the person, a guardian of the estate, or a guardian of the estate and person. Broadly speaking, a guardian of the estate is responsible for handling financial matters on behalf of their ward, such as managing their income or taking care of their property. A guardian of the person is responsible for caring for the ward’s physical and personal needs, such as arranging medical services and making sure they have suitable housing. A guardian of the estate and person will support and protect their ward both personally and financially. 

Meanwhile, it’s important to keep in mind that guardianships can be quite broad in scope, or quite limited. Generally speaking, in a plenary guardianship — also sometimes known as a full guardianship — the guardian is given the power to make all personal and/or financial decisions for the ward. In a limited guardianship, the guardian is only granted power to make decisions about personal care or finances which have been specified by the court. In such an arrangement, the ward keeps all power to make decisions which do not go to their legal guardian through a direct court order. 

Are You Willing to Take On the Many Responsibilities That Come With Being a Guardian?

Seeking guardianship of a family member is not an easy process — and there are many important responsibilities that come along with being a guardian. 

In order to obtain a guardianship, an interested person must file a petition with the court. Ultimately, this will culminate in a hearing and an adjudication of disability for the allegedly disabled person, which includes presenting evidence about their health, mental faculties, finances, housing, and lifestyle. The courts are not always a comfortable setting for such matters, and pursuing guardianship can become contentious in some situations — and could even open the door to a protracted legal battle.

Once a guardian has been appointed, that person must also comply with strict rules as they uphold their important duties — which typically include filing written reports with the court, inventorying the ward’s assets and income, managing their real estate, and paying their taxes. Guardians may also have to go to the courts to obtain permission to take specific actions from time to time. 

Bottom line? Becoming a guardian is a major responsibility, requiring a high degree of personal responsibility, a significant investment of time and energy, and a willingness to open yourself up to scrutiny from the courts. 

Do They Have Powers of Attorney, Health Directives, or Other Protections In Place?

Many experts agree that guardianship is best reserved as a last resort — in part because there are many tools and mechanisms that can be used to protect disabled adults that are less complicated and less intrusive.

For instance, older adults can benefit from having powers of attorney in place. Broadly speaking, a power of attorney is a legal tool that allows you to appoint another person to manage some or all of your affairs in the event that you become incapacitated or unable to make or communicate decisions on your own. There are different types of POA designations, which can be used to delegate responsibility over different types of decisions — including the power of attorney for health care and the power of attorney for finances.

Meanwhile, a living will or advanced directive can allow you to dictate your end-of-life wishes, in the event that you become incapacitated. 

Illinois also allows adults to name a health care surrogate. This is a family member who will be entrusted to make medical treatment decisions for people who lack the ability to do so, and who do not have a valid health care power of attorney in place, a valid living will under the Illinois Living Will Act, a valid declaration for mental health treatment under the Mental Health Treatment Preferences Declaration Act, or an authorized agent under a power of attorney for health care under the Illinois Power of Attorney Act and the patient’s condition falls within the coverage of the living will, the declaration for mental health treatment, or the power of attorney for health care.

Finally, you may be able to create financial arrangements that can enable you to “share the load” with your elderly loved ones — from establishing a special needs trust, to working with their financial institutions to create shared accounts. 

Compared to guardianships, these mechanisms tend to be easier and more straightforward, while requiring less time in court. When prepared in advance, these tools can all help elderly adults to maintain control of their own affairs — and give them peace of mind that their wishes will be carried out.

Looking to plan ahead for yourself, or encourage a loved one to do the same? An experienced attorney can help you to create a comprehensive estate plan — including wills, trust, powers of attorney, and advance directives.

Considering Adult Guardianship in the Chicago Area?

Whether you are planning ahead for the future or trying to take care of an elderly loved one in the here and now, guardianship matters can become incredibly complicated. Consulting with a knowledgeable and empathetic attorney can help make navigating this entire process easier. 

The insight of a legal professional can help you determine if guardianship is appropriate for your circumstances and, if so, what kind of guardianship you should consider. Moving forward, your legal professional’s knowledge and expertise can make it easier to move through our area’s complex probate court system, while giving you confidence and peace of mind at every step of the way. 

Our firm can assist in matters relating to the guardianship of disabled adults in Chicago and the state of Illinois. Our compassion and experience in both guardianship of the person and  guardianship of the estate can help you navigate this difficult transition, while allowing you protect your loved one’s health and finances. 

Founded in 2009 and offering more than 20 years of combined experience, the attorneys and staff at The Law Offices of J. Jeltes work together to provide skilled, efficient, and affordable legal representation to individuals and families going through major life transitions. 

We know that every situation is unique, and our skilled team will work with you to efficiently and effectively meet your goals, while bringing true compassion and meaningful experience to the table. Have any more questions about legal guardianship of an adult in Illinois? Curious about what it takes to get the guardianship process started? Don’t hesitate to get in touch to begin the conversation.