|How Can I Get Guardianship over My Elderly Parent?||
Last updated: March 2008
The following question was submitted to John Roska, an attorney/writer whose weekly newspaper column, "Q&A: The Law," runs in the St. Louis Post-Dispatch (Illinois Edition) and the Champaign News Gazette.
How can I get guardianship over my elderly father? He really can’t care for himself anymore, but refuses help. How hard is it to become his guardian, and is it something I can do myself?
A guardianship requires a court case. It’s possible to do that court case on your own, without a lawyer, but it won’t necessarily be easy.
The law that applies is the Illinois Probate Act. It creates a procedure for having a guardian appointed for a disabled person, who’s called the “ward.” The law says a disabled person is someone who is “not fully able to manage his person or estate.”
Guardianships are usually over both the person and estate of the ward. Occasionally, though, a guardianship is over only one—the ward’s person, or his or her estate.
A guardianship of the person gives the guardian the legal authority over where the ward lives, and how they’re cared for, including their medical care. A guardian of someone’s estate controls the ward’s money, property, and financial affairs.
There’s no guardianship unless the ward is disabled, and they’re not disabled unless a doctor says so. A physician’s report, then, is what really begins a guardianship.
That report states the date of the doctor’s exam, and explains why the doctor thinks the person is disabled. With that report, a Petition can then be filed in court, asking that someone be appointed the guardian of the alleged disabled ward’s person and/or estate. That Petition must be filed within 3 months of the doctor’s exam, and a court hearing must then be held within 30 days after it’s filed.
The person who files the Petition is usually the person who wants to become guardian. To qualify as a legal guardian, you must be 18, and a U.S. resident. You must not be legally disabled yourself, of “unsound mind,” or a felon. (A judge can waive the felony disqualification, though.)
When the Petition is filed, a copy must be served on the alleged ward, and a judge must appoint a lawyer called the guardian ad litem (GAL). The GAL represents the ward’s legal interests, by meeting with the ward, and reporting to the judge whether or not they think a guardianship is necessary.
The law requires that certain relatives get copies of the Petition, and notice of the court hearing, so that they can object if they want. That notice should be 14 days before the court hearing.
At the court hearing, it’s up to the petitioner—whoever filed the case—to persuade a judge that the ward is disabled and needs a guardian. If the GAL backs you, you’ll probably become guardian.
This just skims the surface. The whole process involves lots of paper—I count 15 different forms. Even with the right forms, and good instructions, doing it yourself can be daunting. Your local legal aid office may be able to help. Search the Helpful Organizations section below to find free legal help.
For more information on becoming the guardian of your elderly parent, click on the title below:
For a list of organizations in your area that may be able to help you, enter your zip code.
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