Mentally disabled persons and minors cannot engage in business transactions or make contracts. Their contracts are void or voidable according to the law. Also, in fact, they may not be able to make contracts or may not be able to protect themselves in investment and business matters or in personal matters.

Parents are not guardians of the estates of their children. If a child acquires significant assets in the child's own name, appointment of a guardian of the child's estate is necessary.

The Probate Act provides for the appointment of guardians for disabled persons and minors. There is provision for guardians of the person and also for guardians of the estate. There can be only one type of guardian appointed or both types can be appointed. The same person or organization can serve in both capacities or separate persons or organizations can be appointed.

Guardians are generally governed by the same provisions which apply to the administrators or executors of decedent's estates in supervised administration. The guardian has to obtain court orders authorizing each expenditure. The guardian must also present to the court an inventory of the ward's assets as of the beginning of the guardianship and yearly accounts of all income and expenditures. These are subject to court approval.

The sole criteria in managing guardianship matters is the best interests of the minor or disabled person. What might be good for the guardian or someone else is not a consideration.

Anyone can petition to institute a guardianship for a disabled person. The proceeding is treated like any other litigation. The alleged disabled person must be served with the suit papers by a sheriff or process server and has a right to respond to the petition and contest it.

In addition, a person is appointed by the court to act as the court's agent to contact the alleged disabled person and report independently to the court on the person's condition and whether or not the person wishes to contest the petition. This person is called a guardian ad litem.

Matters concerning custody of minors are usually litigated outside of probate court guardianship proceedings. Custody questions often arise under the Juvenile Court Act or Domestic Relations Act or elsewhere.

Guardianships are expensive and cumbersome. For adults they can be avoided by using durable powers of attorney for health care and property management. Using these, a competent person (before becoming disabled) can designate someone to have authority to handle his or her person or finances if and when he or she becomes disabled. Trusts can also be used to avoid guardianship of an estate. If there is a competent trustee handling a disabled person's assets, there is no estate (property titled to the disabled person) that would require a guardian to administer.

Donald M. Thompson * 55 W. Monroe #3950; Chicago, IL 60603 - Illinois Probate Lawyers
Ph: 312-782-0844 * Fax: 312-201-1436 * Email: donthompsonlaw@sbcglobal.net