Mar 05, 2016
By Rick Law, Senior Advocate and elder law attorney in Illinois. Founder of the Estate Planning Center at Law Elder Law in Aurora. Just off the I-88 tollway.
In 2012, the Illinois Supreme Court decided that, under Illinois law, guardians do have the authority to initiate a divorce action on behalf of a ward for several reasons.
Initially the court explained how its decisions in cases it decided had been inconsistent with the principles set out in long-standing decision In re Marriage of Drews. After Drews, Illinois courts granted guardians the authority to make very personal decisions on behalf of wards without express statutory language granting guardians the authority to make these types of decisions. In these cases the courts found that guardians are broadly empowered “to perform an act which is within the implied authority granted by the Probate Act.”
Second, the court noted that the divorce petition in Drews was filed prior to the enactment of Illinois’s no-fault divorce statute. The court found it “difficult . . . to accept the view that the decision to divorce is qualitatively different from any other deeply personal decision, such as the decision to refuse life-support treatment or the decision to undergo involuntary sterilization” without an injury being required for divorce.
The court stated that the majority rule in Drews is inconsistent with Illinois’s policy of no-fault divorce and the policy of the Probate Act.
The Illinois court further explained under the Probate Act that a person with disabilities is entitled to “vigilant protection” under the law. However, the court noted that a spouse with disabilities is left at a disadvantage when only the competent spouse may file for divorce. In this situation, the competent spouse essentially has complete control over the marriage, leaving the spouse “trapped in an unwanted, potentially abusive, marriage.”
Ultimately, the Illinois Supreme Court remanded the case directing the circuit court to hold a “best interests” hearing. The court also held that a guardian needs to meet a clear and convincing standard to prove that the divorce is in the best interest of the ward.
“In determining the ward’s best interests, the guardian shall weigh the reason for and nature of the proposed action, the benefit or necessity of the action, the possible risks and other consequences of the proposed action, and any available alternatives and their risks, consequences and benefits, and shall take into account any other information, including the views of family and friends, that the guardian believes the ward would have considered if able to act for herself or himself.”
Too many families needlessly lose everything they have. Don’t let that be you. If you need help building a fortress around your estate to protect it from creditors, predators, and the cost of chronic disease, give our office a call at 800-310-3100. Your first consultation is absolutely free. We’ll let you know what steps you need to take, right now, to protect yourself and your family. Call now, because when you’re out of money, you’re out of options!
Rick L. Law, Attorney, Estate Planner for Retirees.
Rick was named the #1 Illinois elder law estate planning attorney by Leading Lawyer Magazine. He has been quoted in the Wall Street Journal, AARP Magazine, TheStreet.com, and numerous newspapers and articles. Rick is the lead attorney for Law Elder Law, LLP, focusing in Estate Planning, Guardianship, and Nursing Home Solutions. His goal is to give retirees an informed edge when it comes to dealing with an uncertain future. Get flexible retirement strategies that work during good times and bad, plus information on how you can save your home and assets from being used to pay for long term care. Call 800-310-3100 for your free consultation now!
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