Your parents may reach a point in their old age that they are no longer able to make decisions about the important matters in their lives. Ideally, you will prepare for this possibility with them by creating a power of attorney for healthcare and finances. If you do not have these documents, you can request adult guardianship for a parent. If granted, the guardianship will allow you to manage your parent’s finances and decide how to proceed with medical treatment and living arrangements. However, you must consider the potential consequences before applying for adult guardianship:

1. Will Your Parent Contest It?: It can be infuriating for an adult to cede the ability to make his or her own decisions. Your parent may have enough self-awareness to fight your attempts to take control of his or her life. Of course, this does not mean that your parent is mentally fit, but you may end up in a bitter court battle to obtain guardianship. Your parent may feel humiliated by the evidence that you present to prove that he or she needs a guardian. No matter the court’s decision, your relationship with your parent may be strained.
2. Will a Family Member Contest It?: Just because your parent needs a guardian does not mean that it will automatically be you. Your other parent will be the first option to make important decisions, as long as he or she is capable of doing so. If your other parent is also mentally unfit, you may need to contest his or her decision-making powers. Your siblings may vie for guardianship over your parents and contest your attempts to take control. Ideally, you can share the responsibility with your siblings, but they may be unreasonable and unwilling to give up any power.
3. Is Guardianship Necessary?: Becoming the legal guardian of your parent is a costly and time-consuming process. Before starting, you should question whether your parent needs a guardian in this situation. Being confused at times does not mean that he or she is incapable of making important decisions. By talking with your parent, you may get him or her to agree to take your advice on matters without requiring your legal authority.

Contact a Warrenville Family Law Attorney

Before applying for guardianship of your parent, you should check whether your parent already has documents related to the power of attorney. A DuPage County family law attorney at Calabrese Associates, P.C., can help you obtain guardianship if you need the legal authority to make decisions on your parent’s behalf. To schedule a free consultation, call 630-393-3111. 

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In broad terms, guardianship can be differentiated by cases involving minors and cases involving disabled adults. Both are similar in that they require a court ruling to determine whether a responsible adult should have decision power over the ward’s:

• Personal care and health; and/or
• Financial estate.

However, guardianship of a disabled adult has many fundamental differences from guardianship of a minor. Obtaining guardianship of a child is already a difficult process because the court must determine what is in the best interest of the child. Obtaining guardianship of a disabled adult can be more complicated because the court must also consider the rights of the adult. Here are four key differences between guardianship of a minor and guardianship of a disabled adult:

1. Assumed Need for Guardian: Children must have an adult who is responsible for their safety and personal decisions. If the parents are incapable of doing that, a guardian will be appointed, whether it is another adult or the state. For disabled adults, courts prefer to give them as much independence as they can handle. The person requesting guardianship must explain why he or she should have power over the adult.
2. Parents As Guardians: Parents do not need to apply for guardianship of minors because they are assumed to be responsible for their own children. When a disabled person becomes a legal adult, the parents will need guardianship if they want to retain the decision-making power they had when the disabled adult was a child. As with anyone else, the parents must prove why they should have guardianship of an adult.
3. Legal Preparations: To prove the need for guardianship, the petitioner must show why the disabled adult is incapable of being responsible for him or herself. A doctor’s evaluation is required to explain the adult's physical and mental limitations and what type of guardianship is recommended. The petitioner also must be knowledgeable of the adult’s wages, personal assets and financial obligations.
4. Court Hearing: When requesting guardianship, the petitioner is taking the disabled adult to court in order to restrict his or her decision-making powers. The adult has a right to an attorney in order to contest and prevent the guardianship. Depending on the adult’s level of awareness, he or she may feel embittered because of the prospect of losing his or her rights as an adult.

Deciding on Guardianship

Protecting your children means preparing for their needs in case you can no longer be their parent. Your death, incapacitation or incarceration would prevent you from performing your parental duties. Planning for your absence is particularly important for single parents. If the other parent is not available to assume the allocation of parental responsibilities, your children must have a legal guardian to care for them. You can appoint a standby guardian to immediately take care of your children in the event that you are no longer able to.

What Is Guardianship?

A guardian is a person that a probate court appoints to oversee a child’s care when a parent is unable to. The legal parent retains his or her parental rights during guardianship and may reassume parental responsibilities once a court determines he or she is capable of doing so. To qualify as a guardian, a person must be:

Being an adult does not mean someone is capable of making his or her own decisions. Adults may be unable to care for themselves because of:

• Mental illness;
• Developmental disability; or
• Dementia.

To help adults with disabilities, an Illinois court may appoint a guardian to oversee his or her protection, health and estate. However, a potential guardian must prove that the disabled adult is incapable of caring for him or herself.

Types of Guardianship