Filing for Conservatorship in Illinois

 Posted on October 15, 2015 in Estate Planning

In some situations, it is necessary for a conservator to be appointed to oversee a person's affairs. Many people refer to a conservator as an adult guardian. A conservator can be appointed to make decisions regarding a person's financial affairs (referred to as a conservator of the estate) or to make personal decisions for the incapacitated person (referred to as a conservator of the person). In many cases, one person can be appointed for both duties.

Sometimes, the person who needs the assistance of a conservator is able to make the decision as to who is appointed. However, it is often the case that the person is too incapacitated to do so. In these situations, there is a preferred legal order that the court considers when making the appointment. It is usually preferred that the spouse or domestic partner be appointed conservator. Other people who may be considered, in preferable order, include an adult child, a parent, and a sibling. If no one from the family is qualified, available, or willing, then there are professional conservators who are available for a fee, which is paid from the estate.

In order to have a conservator appointed, someone is required to file a Petition for Conservatorship with the court, which clearly states a valid reason or reasons why the appointment is necessary. There is a burden of proof the petitioner must meet and is required to submit evidence, such as medical documentation, which confirms the need of a conservatorship appointment.

Once the petition is filed and all interested parties are notified, the court appoints a guardian ad litem (GAL), who will investigate and present to the court his or her findings regarding whether or not there is a need for the conservatorship appointment. The court will then schedule a hearing—all parties involved can testify to any objections they have regarding the appointment. Finally, the court will issue a final order, along with the powers the conservator will have over the conservatee's personal and/or financial matters.

Conservatorship appointment can be legally complicated and cause a great deal of friction in a family if there is not an agreement on who should be the one handling a person's affairs. One way to avoid this type of issue is to have in place durable powers of attorney for both health and financial decisions in the event something should happen and you are no longer able to handle your affairs. Please contact an experienced DuPage County estate planning attorney today to discuss your situation and legal options.

Sources:

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=3119&ChapterID=60&SeqStart=1800000&SeqEnd=2100000

https://www.illinois.gov/sites/gac/OSG/Documents/PRAGUIDE2007.pdf