How do I establish guardianship of my mother who has dementia?

Full Question:

Dad died; son needs guardianship for mom and guardianship of assets and house. Mom has late stage dementia.
06/07/2009   |   Category: Guardianship   |   State: Illinois   |   #16889


I suggest calling the local clerk of courts to inquire about costs and filing fees, as filing fees vary by type of proceeding and court. Typically, an attorney asissts in establishing a guardianship for an adult. I suggest contacting a local attorney for an estmate of costs. Fees vary be attorney and the facts and circumstances involved. The cost of establishing is often between $3,500 and $6,000 depending on whether the guardianship is contested and if there are conflicting opinions on who should manage the ward's affairs. A free consultation is often available for an intial determination of costs involved.

There are different types of Guardians. A Personal Guardian tends to the personal care of the ward, while an Estate Guardian is the guardian of a persons estate (real estate, personal property, money, and the like). One person can be guardian of both, or separate guardians may be appointed. A Personal Guardian is given custody of the disabled person or minor, this person often being called the ward. Such a guardian has a duty to take care of the ward. He/she will decide where the ward will live. He/she cannot place the ward in a nursing home or other residential facility unless specifically given that authority by the Court. The guardian is responsible for the ward's support, care, comfort, health, maintenance and placement, if appropriate, in an educational program; all from the ward's income and assets. The guardian is to see that the ward gets the medical, dental, grooming, and other professional services that the ward needs. The law requires that the guardian "assist the ward in the development of maximum self-reliance and independence".

The guardian is not required to spend his/her own money for any of these expenses. The guardian is may be responsible for seeking the money needed from the ward's income and assets.

If the guardian spends more or incur debts greater that the ward's estate can afford, he/she may be held personally responsible for those amounts. If the ward does not have enough money to pay for what is needed, it is the guardian's responsibility to apply for government assistance programs that may help pay for these services.

If the Court so directs, the guardian is will also have the responsibility of making reports to it. These reports shall specifically address points required by Illinois law. If the ward has enough money, the guardian can be paid for serving as guardian. The guardian's bill for services must be supported by careful records and approved by the Court.

The estate of the ward is everything the ward owns. It includes land, money, bank accounts, furniture, cars, clothes . . . everything. The guardian's responsibility over this property may be defined or limited by the order appointing the guardian.

An estate guardian has the duty to take care of, manage, and invest the ward's estate. He/she must take care of the ward's estate and be frugal, conservative and cautious. The Court may authorize the guardian to spend the ward's money for the comfort, support and education of the ward, as well as certain expenses of the ward's family.

If the ward receives benefits from the Veterans Administration, the guardian must give the Veterans Administration notice before requesting this authorization from the Court.

The guardian may be able to sell some of the ward's property to pay for the ward's care, but he/she will need a Court order to do so. The guardian may not treat the ward's property as his/her own. The guardian must keep his/her money separate from that of the ward. The guardian can be forced to pay for any mismanagement or fraudulent use of the ward's estate. The guardian should establish a new, FDIC fully-insured checking account to pay for the ward's expenses. It should be titled: Estate of "ward's name", "guardian's name", Guardian. The ward's Social Security number should be used on this account.

The guardian must keep a careful record of all transactions involving any of the ward's property. This can range from balancing the checkbook to hiring an accountant at the estate's expense. Every bill that is paid and all money that is received on behalf of the ward periodically must be reported periodically to the Court.; To be able to identify the source of money received when the time for accounting comes, it can be helpful to describe the source of the money on the bank deposit ticket.

The guardian cannot sell, lease, mortgage or use as security the ward's land, house, car, furniture or any other property without a Court order. The guardian will also need the Court's permission to operate an ongoing business of the ward's. Seeking permission from the Court commences with filing a petition in the Circuit Clerk's Office. The guardian may not take any of the ward's property out of the State of Illinois.

As Estate Guardian, the first deadline to be concerned with is the filing of an Inventory. The Inventory must be filed with the Court within 60 days of the appointment as Guardian. The Inventory is a sworn document that lists all of the ward's assets.

The guardian must list all the land the ward owns, describe generally any building on such land and, if there are mortgages on the property, give details of the mortgages. He/she must list all bank accounts, with balances as of the date of your appointment.; The ward's cash should promptly be put in a Federally insured, interest-bearing bank account, if feasible. Any cars, oats, stocks, bonds, insurance policies. Valuable artwork or jewelry, or other unusually valuable items should be listed separately. Small household items may be lumped together.

If the ward owns something jointly with another person, that property also should be listed with a notation that it is jointly owned.; The full value of that property should be stated.

The guardian will have to petition the Court to sell or spend any property the ward owns jointly with anyone else, including the guardian, on the ward's behalf.

If, after filing the Inventory, the guardian finds additional assets, he/she must file a supplemental inventory within 60 days of discovering the additional assets.

If the ward has been receiving Social security benefits, the guardian should contact the local Social Security office and inform that office of his/her appointment as Guardian. The guardian will need to provide the Social Security office with the Court documents appointing him/her as Guardian. The Social Security office can provide information on using the benefits on behalf of the ward. It may be convenient to have the Social Security checks directly deposited in the new Guardianship account. Social security benefits should be spent before any of the ward's other assets.

If the estate of the ward is derived in full or in part from payments made directly to the estate by the Veterans Administration, notice of any application or leave to invest or spend any of the ward's funds must be given to the Veterans Administration regional office. The guardian should contact either his/her attorney or a representative of the Veterans Administration office for details as to how this is to be handled.

The guardian is responsible for filing the ward's income tax returns, both federal and state, if the ward has enough income to require the filing of returns. The guardian will be responsible for paying any estimated income taxes due in April, June, September, and January. The guardian can pay all these taxes with the ward's money.

The guardian must pay the real estate taxes on any land that the ward owns and look into all exemptions available to the ward, such as elderly and homestead. These taxes also can be paid with the ward's money. The guardian will have the duty to appear for and represent the ward's interests in all legal proceedings. He/she may (and should) hire an attorney to handle any legal matters involving the ward or the ward's property. With the Court's permission, the guardian may use the ward's funds to pay these attorney fees.

The guardian may have a duty to apply for public aid from the Department of Human Services on the ward's behalf. This Department is commonly known as the Public Aid office. The Illinois Department of Human Services will inform the guardian as to whether the ward qualifies or of what steps the guardian needs to take so that the ward will qualify. The guidelines vary greatly depending upon whether the ward is married or single, has dependents, and owns certain assets.

The guardian also may have a duty to apply for the State of Illinois program known as the Circuit Breaker. If the ward is 65 or older, or at least 16 and totally disabled, and has an annual household income below a certain amount, the guardian should look into applying for the Circuit Breaker. This program provides cash rebates for property taxes, a small rebate for various other taxes, and a small grant for blood pressure, heart, diabetes and arthritis medicines. Additional information and applications may be obtained from:

Illinois Department of Revenue

Circuit Breaker Program

Willard Ice Building

101 West Jefferson Street

Springfield, IL 62794-9015

Phone Toll-free: 1-800-624-2459

It is the duty of the Estate Guardian to invest the ward's money in accounts that earn interest at a rate equal to or greater than the rate on 90-day United States Treasury Bills. If he/she fails to do so, he/she may be assessed penalties. The guardian may, however, keep reasonable sums for money which do not earn such interest available to pay for the ward's current expenses.

The law limits the guardian to specific kinds of investments, unless otherwise authorized by the Court. These investments are specified in the Illinois law, but to summarize them, they would include bonds backed by the United States or its agencies; federally-insured accounts in banks, savings and loans, and credit unions; real estate; certain kinds of annuities; and certain kinds of money market funds. Before making an investment, the guardian should consult with an attorney knowledgeable in this area. Other kinds of investments, such as corporate stock, are allowed by law, but there are detailed restrictions regarding such investments. With the approval of the Court, the estate may retain any of the ward's investments made prior to the guardian's appointment.

The guardian should make certain that funds on deposit in any one financial institution do not exceed FDIC insurance limits. The guardian must submit a sworn account to the Court within 30 days following the expiration of the first year as estate Guardian. This Account lists all receipts and disbursements the guardian made for the ward and all the property he/she presently controls for the ward. The Court may require the guardian to present cancelled checks for all disbursements. Additional accounts must be filed every three years. The Court also may require more frequent accounting. Finally, the guardian must file an account within 30 days after he/she ceases to serve as Guardian.

If the ward receives Veterans Administration benefits, a copy of the account must be sent to the Veterans Administration at least 10 days prior to its presentation to the Court. The guardian may (and should) submit a petition for fees for himself with each account. The guardian should keep careful records of the time he spends on the ward's estate and of any expenses he/she incurs.

With respect to Guardians of the Person, there are other responsibilities that the guardian has which are explained more specifically by Illinois law. In addition, there are certain activities in which the guardian may not engage. The guardian is strongly encouraged to consult with an attorney to become familiar with them. Similarly, the guarding also has the responsibility of making reports to the Court of his/her activities as Estate Guardian addressing points specified by Illinois law. An attorney or the Office of the State Guardian can also assist in this area.

The guardian's responsibilities will continue until the Court relieves him/her of the obligation. This may occur upon the termination of the Guardianship, upon the death of the ward, or upon the guardian's resignation or removal. This applies to both Guardianships of the Person and of the Estate.

The Guardianship of a Disabled Person may be modified or terminated if the disabled ward's capacity to manage his or her affairs changes. Also, the guardian has the right to resign as Guardian at any time.

If the guardian wishes to resign, or if the Guardianship should be terminated because it is no longer necessary for the ward, the guardian must petition the Court for permission to resign or to terminate the Guardianship. If the guardian is resigning as Guardian, and if the ward remains disabled, he/she will need to request the Court to appoint a Successor Guardian. If a disabled ward's capacity is restored, the guardian should obtain the Court's permission to transfer the ward's property to the ward. In either case, the guardian will be required to prepare a final Account listing all transactions made since the last Account was prepared.

Any Guardianship will terminate upon the death of the ward. If the ward dies, the guardian you must notify the Court and request that the Guardianship be closed. Until an Administrator or Executor is appointed to manage the deceased ward's assets, the guardian retains the authority to manage and collect the ward's assets if he/she is the Estate Guardian. The guardian does not have the right to make any more payments from the ward's estate. An Estate Guardian of the deceased ward will need to prepare a Final Account listing all transactions made since the last Account was prepared.

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