Temporary Guardianships

By Rick Law of the Estate Planning Center at Law Elder Law in Aurora, IL.  Providing wills and trusts, probate, elder law, estate planning, guardianship, and much more to seniors, boomers, and their families in the Kane County area.

The guardian ad litem is often referred to as the eyes and ears of the court. Before the temporary guardianship hearing is held, the court appoints a guardian ad litem to visit the person, make a determination, and report back to the court as to whether emergency relief is necessary and reasonable under the circumstances.

Because temporary guardianship petitions are granted in emergency situations, it is important to make your attorney aware of the cause of the emergency, and to detail how the current situation jeopardizes the person’s financial or personal well-being.

In most courts, the petition for appointment of a temporary guardian is required to be filed contemporaneously with a plenary or limited guardianship petition. However, in some courts, a temporary guardian petition may be filed, and relief granted, with no further action required of the petitioner.

Although orders may be entered without notice to the person with alleged disabilities, many courts insist on the appointment of a guardian ad litem in temporary guardianship situations.

The steps for an attorney to petition for a temporary guardianship are as follows:

Step 1: Obtain a physician’s report and file an appropriate court form.

The report must be completed by a physician (M.D. or D.O.).  The judge cannot approve a temporary guardian without an accompanying doctor’s evaluation.

Physician’s Report should include:

  • a diagnosis that the respondent suffers from one of the following that renders the person partially or totally incapable of making personal or financial decisions:
  • mental deterioration
  • physical incapacity
  • mental illness
  • developmental disability
  • a description of the nature and type of person’s disability
  • how the disability affects the patient’s functioning and decision making
  • an analysis of the results of evaluations of the person’s mental and physical condition
  • information on educational condition, adaptive behavior, and social skills
  • whether the person is in need of a guardian and the type and scope of the guardianship needed
  • a recommendation of the most suitable living arrangement for the person

Step 2: File the petition for plenary and temporary guardianship simultaneously.

  • The temporary guardianship petition must state why a temporary guardian is necessary.
  • Focus on “the immediate welfare and protection of the alleged disabled person and/or his estate.”

Step 3: After filing the temporary guardianship petition, a guardian ad litem must be appointed.

Because a temporary guardian is authorized to have all the powers and duties available to a plenary guardian as listed in the appointing order, it is imperative that your attorney carefully details any and all powers sought in the temporary petition.

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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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