Mar 02, 2016
By elder law and estate planning attorney Rick Law, founder and managing partner of the Estate Planning Center at Law Elder Law in West suburban Aurora, IL.
Several states have enacted statutes giving guardians/conservators general authority to act on behalf of wards. It is well accepted that these general grants of power usually include the authority to make personal decisions about the ward’s health care, end-of-life treatment, place of residence, and visitors. However, one area that many jurisdictions still find too personal to allow a guardian or conservator to act on behalf of the ward is divorce.
The majority rule is that guardians and conservators cannot bring a divorce action on behalf of a ward unless a statute expressly grants such authority. However, an increasing minority of states are beginning to hold that a guardian or conservator can bring a divorce action on behalf of a ward even without express statutory authorization.
In 2012, the Illinois Supreme Court overturned its long-standing decision in In re Marriage of Drews and now allows guardians to initiate divorce actions on behalf of their wards pursuant to a “best interests” hearing.
In Drews, the court had adopted the majority rule that, “absent statutory authorization, a guardian cannot maintain an action, on behalf of a ward, for the dissolution of the ward’s marriage.” Illinois’s Probate Act authorizes a guardian to act on behalf of a ward in all legal proceedings.
However, the court in Drews interpreted this authority as applying to legal proceedings that are financial, but not personal, in nature.
The court then had to decide the issue of whether a guardian has the authority to proceed with a counter-petition for divorce on behalf of the ward, after the competent spouse voluntarily dismissed his petition for divorce, making the counter-petition filed on behalf of the ward the sole petition.
The Illinois Supreme Court ultimately decided that, under Illinois law, guardians do have the authority to initiate a divorce action on behalf of a ward for several reasons.
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!
My wife and I had our first child three years ago. That’s when we decided to set up a trust, should anything happen to either of us. We reached out to Zach Hesselbaum to help us out. He was very thorough and professional throughout the whole process. Zach went above and beyond to make sure that we understood every detail of setting it up and he did an excellent job. We recently had our second child a few months ago. With the new baby, he helped us make the necessary revisions to the trust. Zach made this process great for us! I would definitely recommend using him for any of your estate planning needs!
Tom G., Naperville, IL