In this article, we will discuss some alternatives to adult guardianship in Illinois. We will discuss the benefits of adult guardianship in Illinois, the downsides of adult guardianship in Illinois, and other options for families considering adult guardianship. For some foundational information on adult guardianship, check out our article, Illinois Adult Guardianship Explained.
Benefits of Adult Guardianship in Illinois
Adult guardianships allow someone to make the personal legal and financial decisions for an adult who is unable to make decisions for himself or herself. The disability must be proven in court, and the courts must approve the guardian of choice. Often, family may turn to a guardianship for an adult with special needs or have other physical or medical situations that require assistance in making or communicating decisions for themselves. As a guardian, you are held responsible for the well-being of the person and must report to the courts to assure that you are making decisions within the best interest of the person.
The primary benefit of adult guardianship is empowering a loved one of the disabled adult to make financial and personal decisions on behalf of the disabled adult. A secondary benefit is that the court will provide oversight of the guardian to ensure that the guardian is acting in the best interests of the disabled adult. Guardianship can be challenged by the court if someone believes the acting guardian is not fulfilling their role properly.
Downsides of Adult Guardianship in Illinois
Guardianship is a popular option, however some families decide to go alternate routes based on some potential downsides of adult guardianships. One of the biggest downsides is how limiting a guardianship can feel for the disabled adult. He or she may feel as if they are unable to control his or her life and may get frustrated with needing to go through a guardian for major decisions.
Another potential downside is the court process. As a guardian, you will be held accountable by the courts for your decisions. This is a strong protection against fraud and malfeasance, but it can also add legwork and legal fees for the guardian and the adult. Guardians are typically required to prepare and file a report of their actions to the court on an annual basis. A public court appearance regarding private or family-related decisions can also be embarrassing and stressful as the records may be public and time-consuming.
Alternatives to Guardianship in Illinois
There are pros and cons to adult guardianship as discussed above. If you are considering substitute decision making and would like to avoid guardianship, here are some of the most common alternatives that may lighten the limitations on the guardian and the adult:
- Power of Attorney. Power of Attorney is a popular and functional option for those wanting a less restrictive and more customizable option. Power of Attorney allows the adult to decide on his or herown guardian as well as limit their power to specific areas or decisions such as health care or business. Powers of attorney are less expensive than a guardianship proceeding. However, powers of attorney can only be executed by disabled adults with requisite mental capacity to understand their action in doing so. For more on powers of attorney, check out our article: Illinois Powers of Attorney Explained.
- Limited Guardianship. A limited guardianship may be an option for families wanting to avoid full guardianship. This is still decided and monitored by the courts, but they are given less power than a full guardian and are only given control over the types of decisions explicitly ordered by the court. For more on this, check out: What is a Limited Guardianship?
- Special Needs Trust. A special needs trust allows a third party trustee to control the assets held in trust for the benefit of the disabled adult. The terms of the trust can establish specific functions for which the trust funds must be used. Special needs trusts also allow disabled adults to accumulate assets and earn income without negatively impacting government benefits. For more on this, check out: Illinois Special Needs Trusts Explained.
- Sharing of Bank Account and Financial Information. If you are specifically interested in monitoring the financial decisions, you can create shared bank accounts which will allow you to check transactions, monitor usage or set withdrawal limitations. This process is not perfect and can vary slightly by bank and area, so you should check with an attorney to see if this option is reasonable.
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