Guardian Defined

By Rick Law, senior advocate and elder law and estate planning attorney for seniors who want to plan for the unknown.  Protect your family and your assets, and have your wishes adhered to if you become ill or incapacitated.  Call the Estate Planning Center at Law Elder Law in Aurora for your free consultation at (800) 310-3100.

A guardian is someone appointed by the court to serve as a representative of the person with a legal disability, such as Alzheimer’s disease or other dementia.

A court-appointed guardian has the authority to make decisions for the person with Alzheimer’s without judicial involvement, provided the decisions are consistent with the procedures and requirements of the governing statutes or regulations of that state. Guardians typically are required to provide periodic accounting to the court.

Disability must be assessed according to statutory definitions and “cannot be inferred merely from old age.” Age, by itself, is not a disability. Some people are the subject of guardianship proceedings because their conduct is somewhat contrary to our natural norms of society.

A 96-year-old man wanted to go to Las Vegas and marry his caregiver. Some of his family members questioned whether he was competent and started a guardianship proceeding to try to stop him. The judge did find that although he, too, thought it was a stupid decision to marry the caregiver, this man was competent to make those stupid decisions. The man did not need a guardian and was free to make bad personal decisions.

One of my peers, attorney Kerry Peck, notes that, “Competent people are able to make stupid decisions, and we hear judges say that on a pretty regular basis.”

An experienced elder law attorney knows it is a good idea to ask “orientation questions” when dealing with potential clients who may come in for an estate plan or ask for a lawyer to defend them against a guardianship action, and always when they ask a lawyer to act in the role of guardian ad litem. Orientation questions are simply questions to see if clients can understand the time and the place they are in, who they are, and what’s going on currently in the world.

Basic orientation questions would involve asking individuals their address, how many children they have, their age, their name, and, if they are old enough, about their grandchildren.

Of course, lawyers are going on the collaboration of your family or the family of the potential ward as to whether these answers are correct. It is also good to ask about current events, e.g.: Is there a presidential election coming up? Who are the candidates? Is there some major world event, such as a hurricane, that has occurred? Where did it occur?

The answers to the orientation questions will give everyone involved a good jumping-off point, but they will need a medical expert to examine the individual to be absolutely sure when it comes to issues of dementia.

If your loved one has memory problems and you’re afraid of the consequences that may bring, give our office a call today 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.


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,, 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!

Our Reviews

“Everyone in the office was absolutely wonderful to work with whether on the initial set-up of the trust, adjustment to such following my father’s passing, or processing of his home sale and proceeds.

They genuinely care for your family’s well-being and walk you through each step of the process. They are also exceptionally responsive even when parties involved live in different locations.

This is a definitely a team you can trust and one I highly recommend.”

W.W., Client of Law Hesselbaum