The Talk…Part II: What Happens When Your Parents Can No Longer Care for Themselves?
What happens when your parent gets older and needs you to take care of them? Most of us will get to a point where we need someone to take care of us by paying our bills, filing our taxes, taking us to the doctor, and managing our day-to-day care. There are two ways you can have the power to step in and care for your ailing parent. One way is by being designated as agent by your parent under their power of attorney. The second way is being appointed as the legal guardian of your parent in court.
I am going to go into what these two legal options mean, when they come into play, and how you go about planning for them.
Powers of Attorney
A power of attorney is a document that allows a person (called the “principal”) to choose someone else (called the “agent”) to act on their behalf. This is a legal document that can be used for limited purposes or can be quite expansive. It can be used for a one-time thing like closing on the sale of a house to taking care of everything for an open-ended amount of time. These documents are flexible and can be crafted to the person’s desires. They are also revocable so you can always cancel or change them if you change your mind. There are two types of powers of attorney you will want to think about:
Healthcare Power of Attorney – this allows someone to step into the shoes of the principal and make decisions regarding their medical care, living situation, and day to day care.
Durable Power of Attorney – this allows someone to step into the shoes of the principal and handle their financial affairs. This usually entails accessing bank accounts and paying bills.
A few important things to note about powers of attorney. The person signing a power of attorney and designating an agent must be able to understand the document they are signing. We call this capacity. This is important because if your parents does not sign these while they are still healthy, and something were to happen, they may no longer have that option.
Most estate planning attorneys will recommend that you sign powers of attorney when you have your Will drafted. So if you know that your parents had a Will created, they very well may have powers of attorney, too. You should ask your parent if they remember signing a power of attorney. There is no registry for powers of attorney, so your parent should have kept a copy. People often store them in their filing cabinet, safe, or safe deposit box (I’ve also heard of them being stored in the freezer, under a mattress, and many other odd places!).
A properly done power of attorney can save a lot of time and money for your family. This is the one document we believe everyone over the age of 18 should have. If your parent does not have a power of attorney or needs to update an old one and is still capable of understanding what they are signing, you may want to urge your parent to have one drafted. You can help your parent by explaining what a power of attorney is, why they should have it, and help them find an attorney who can make it simple and easy for your parent.
If your parent never signed a power of attorney and no longer has the mental capacity to sign a power of attorney, your next option is guardianship.
Guardianship is being legally responsible for someone else who is unable to care for themselves. It requires being appointed by the court as a guardian. There are two types of guardianship: guardianship of the person and guardianship of the estate.
Guardianship of the Person – Being appointed guardian of the person allows the guardian to be able to make healthcare decisions and living arrangements for the disabled adult.
Guardianship of the Estate – Being appointed as guardian of the estate allows the guardian to step in to handle the disabled adult’s financial affairs.
Most people obtain guardianship of the person and the estate when caring for their parent. If you and your sibling want to share in the responsibilities, you can decide to nominate one of you over the estate and one of you over the person.
If you are thinking of obtaining guardianship, you should consult with an attorney who practices in that area. You’ll want to come prepared with the following:
- Your loved one’s address, telephone number, and date of birth
- Your loved one’s family’s names and addresses (spouse, adult children, siblings)
- An estimate of your loved one’s assets (home, car, bank accounts, investments, etc.)
- An estimate of your loved one’s income (pensions, social security, disability, etc.)
- A recent doctor’s report that states your loved one requires a guardian because they cannot make personal or financial decisions on their own.
What is required to become guardian? In the state of Illinois, the person who wants to become guardian (the petitioner) must be over the age of 18, not a felon, and never deemed incapacitated. The Probate Act (755 ILCS 5/11a) controls the guardianship requirements and procedures. The disabled adult will need to be seen by a licensed physician who will need to fill out a court form called a “Report of Physician” that will state what the person’s disability is and whether the doctor recommends guardianship. The disabled adult will also have to be served the court petition and notice of their rights. This can seem like a nonsensical procedure to have a person with sometimes extreme disabilities served court paperwork, but guardianship is a very powerful legal instrument and the court must ensure it is not abused.
In many cases, the court will appoint a guardian ad litem (“GAL”). The GAL is considered “the eyes and ears of the court.” The GAL will visit with the disabled adult, read them their rights, and speak with family members in order to make a report to the court. This report will advise the judge on whether the GAL believes the disabled adult needs a guardian and whether they think it should be the person who petitioned or someone else.
The court will hold a hearing on the petition to appoint the guardian and the person who wants to become guardian will need to appear along with their attorney. If a GAL was appointed, they will appear to provide the court with their report. The Judge will ask the person a series of simple questions under oath. If the judge believes the disabled adult needs a guardian and the petitioner is qualified, then the petitioner will be appointed guardian. The court issues a document called Letters of Office and this is the document that allows you to step in for your parent and act on their behalf.
After appointment, the case remains open until the guardian is discharged. The guardian of the person will need to report to the court every year on how the disabled adult is doing. The guardian of the estate will need to file annual accountings with the court to show how the money is being used. All big decisions will require the court’s approval such as moving the disabled adult, selling the house, or spending money outside of the budget. The court oversees the guardianship to ensure the guardian is only spending money for the benefit of the disabled adult.
Powers of Attorney V. Guardianship
|· Two types: Healthcare and Durable;
· Private documents;
· The person signing must have mental capacity;
· Allows the person signing it to choose their agent;
· No court oversight;
· Flexibility in length of time and powers granted; and
· Always terminates at death.
|· Two types: Person and Estate;
· Public record
· The adult must be deemed incapacitated by their doctor and the court;
· The court has the ability to choose the guardian;
· Court proceeding with court oversight;
· Ongoing until guardian is removed by the court;
· Upon death, guardian must notify the court and provide a final accounting
It’s always a good idea to have a plan in place in the event you need to step in and care for your family member. Sometimes, we can’t plan for these events and that’s where guardianship is a strong and effective tool to give us the power to care of our loved ones. The process can feel overwhelming and that’s why it’s important to have an experienced attorney to guide you through the process.
Joanna B. Long is an Illinois licensed attorney and founding partner of Campbell Long, LLC. We are proudly a mom-owned law firm serving clients in Chicago and the Western Suburbs. The attorneys at Campbell Long help families at every stage of life with a focus on guardianship, estate planning, estate administration, and real estate transactions. We aim to make our clients feel empowered and comfortable seeking legal services.
This is article is intended to be used for informational purposes only and does not constitute legal advice. If you or your family member are facing any of these issues, you should consult with an attorney.