Who Should be the Guardian?

By Elder Law Attorney and Senior Advocate Rick L. Law.  Managing Partner of the Estate Planning Center at Law Elder Law.  Kane County Illinois’ elder law, estate planning, guardianship, probate, wills and trusts attorneys in Aurora.

The probate court, upon petition of a guardian for an adult with disabilities, and after notice to all other people interested as the court directs, may authorize the guardian to exercise any or all powers over the estate and business affairs of the ward that the ward would be able to exercise if present and able.

The court has the power to authorize actions or the application of funds to meet the ward’s wishes so far as they can be ascertained. The court must consider the permanence of the ward’s disabling condition and the natural objects of the ward’s bounty in making these decisions.

In ascertaining and carrying out the ward’s wishes, the court may consider minimization of State or federal income, estate, or inheritance taxes; and providing gifts to charities, relatives, and friends that would be likely recipients of donations from the ward. The ward’s wishes must be carried out as best they can be ascertained, whether or not tax savings are involved.

So, who should be the guardian? It is crucial to examine the potential guardian’s abilities and skill set when choosing a person to serve as guardian. The correct choice may be a spouse, adult child, or friend. However, if there is no one in the person’s life with the correct abilities and skill set, lawyers need to consider other options.

Two such options: Some states and/or counties have officials who serve as the public guardian. And there are private professional guardians certified by the National Guardianship Association, Inc. (www.guardianship.org).

Family members and friends will often disagree about who should act as the person’s guardian, and lawyers may have to actually prove in court who is the right guardian. The task at trial simply may be presenting evidence to distinguish between the proposed guardians and convincing the trier of fact of one’s superiority to meet the respondent’s needs, whether personal, fiscal, or both.

The parties may attempt to settle matters by agreeing to the appointment of financial institutions, geriatric care managers, county public guardians, or an other neutral party as guardian when family members and friends are contesting the choice of guardian.

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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