Guardianship – Why is Guardianship Necessary?

May 8, 2018
Lenora Alabi
Guardianship is a legal process in which one person is appointed as the guardian of someone who is unable to make personal and financial decisions. The guardian is typically a family member who is familiar with the care and well-being of the disabled or elderly person. If you have a loved one who still lives independently but you believe that they are unable to manage their affairs and may be vulnerable to thieves and financial predators, guardianship may be appropriate to protect them.

Many elderly individuals are resistant to guardianship as they believe guardianship will result in a complete lack of independence and autonomy. However, guardianship does not automatically deprive a person of his or her individuality and freedom. As long as a person is able, he or she may still drive to visit friends and family – even after a guardian is appointed. A person with a guardian may still vote and participate in community events.

Yet, guardianship provides important protection for individuals whose mental capacity is diminishing. As we age, we start to lack sound judgment over financial matters. As a result, individuals living outside of a nursing home and independently from their families, are vulnerable to exploitation. One can easily imagine a scenario in which these friendly outgoing individuals sign an exploitative contract or loan new “friends” thousands of dollars.

Guardianship provides an additional layer of protection over the finances of elderly individuals. During a guardianship proceeding, a probate judge declares that the elderly individual is incapable of making decisions regarding their financial affairs. The court then appoints a Guardian of the Estate to take care of the elderly person’s finances and property. The judge may also declare that the elderly individual is incapable of making decisions regarding their healthcare. If so, the judge will also appoint a Guardian of the Person to manage the individual’s healthcare. The Guardian of the Estate and Guardian of the Person can be the same individual. Or, the Guardian of the Estate may be an individual or an entity like a bank that is different from the individual serving as Guardian of the Person.

As long as the elderly person is alive, the Guardian of the Estate is required to present an annual accounting to the probate judge. The annual accounting provides the judge and any other interested parties the details of how the elderly person’s money was spent throughout the year. The Guardian of the Person is also required to present an annual report to the probate judge. In the annual report, the Guardian of the Person gives a brief summary of the elderly person’s life over the past year: where they live; if they moved; if there was a major health incident, etc. Both of these reports give the court a snapshot of the person’s well-being and the court will either accept these reports or reject the reports and order that other actions be taken for the wellbeing of the individual. Guardianship proceedings are complicated and involved, but for many families they provide the peace of mind that comes from knowing that an elderly loved one is being protected and well cared for.

Andrew Hays and his legal team at Hays Firm LLC in Chicago are knowledgeable guardianship attorneys who have a great deal of experience with advising clients on how to protect the rights of their loved ones. Please contact us to talk about how we can help.