For most of last year, the public eye was focused on the legal battle between Britney Spears and her father, Jamie Spears, who had been acting as Britney’s conservator since 2008. In November of 2021, the court ruled in Britney’s favor to end the conservatorship, freeing Britney to make her own personal and financial decisions after nearly 14 years. Prior to the court’s ruling, Britney’s fans flooded social media with the hashtag “#freeBritney” in support of ending Britney’s conservatorship; however, many were unaware of what a conservatorship actually is, and why a conservatorship is sometimes necessary to manage an individual’s personal care and finances.
WHAT IS CONSERVATORSHIP AND GUARDIANSHIP
In Illinois, a conservatorship is called a guardianship. Guardianship is a legal process administered by the Probate Court on behalf of a minor child or a disabled adult who is unable to make and communicate responsible decisions regarding his or her personal care or finances due to a mental, physical or developmental disability. A mental, physical or developmental disability alone is not sufficient for the appointment of a guardian, absent an inability to care for oneself.
There are two types of guardianships: (i) guardianship of the person; and (ii) guardianship of the estate. Guardianship of the person is created in order to assist the disabled individual in making decisions regarding his or her personal care. Whereas, a guardian of the estate is appointed in order to assist in managing the disabled individual’s finances. Depending on the ability of the disabled individual, the Court can choose to appoint a limited guardian, who only has the power to make decisions specified by the court, or a plenary guardian, who has broad powers to make all decisions relating to any personal or financial need of the disabled individual.
HOW GUARDIANSHIP WORKS
When an individual is in need of a guardian, the first step is to file a petition with the court by an “interested person”. This petition will include basic information, but the petition must also be coupled with a physician’s description of the disabled individual’s physical and mental capacity, along with any relevant evaluations that a physician can offer to assist the Judge in determining the need for a guardian. After the petition is filed, a hearing will be set, during which evidence will be presented regarding the disabled individual’s health, mental faculties, finances, housing, and lifestyle. During this hearing, a guardian ad litem will also be present to act on behalf of the disabled individual, to advocate in their best interest, and make recommendations to the court.
In order to become a guardian, a person must be at least 18 years old, be a United States resident, be of sound mind, not be legally disabled, and not have a felony conviction that involved harm or threat to a child. During guardianship, the court supervises the appointed guardian to ensure that the guardian is taking actions that benefit the minor child or disabled adult. This supervision, however, can be costly, especially when there is a significant amount of assets to manage. Guardians of the person may be required to submit an annual report to the court which outlines the services being provided to the disabled individual, and the status of their personal care. Similarly, estate guardians are required to file annual inventories, showing in detail the disabled individual’s assets, as well as an accounting of the estate’s receipts and disbursements. These reports are reviewed by the court in order to confirm that the guardian is acting in the disabled individual’s best interest.
If a disabled individual wishes to end their guardianship, they can petition for a restoration hearing. During a restoration hearing, the disabled individual will get the opportunity to offer evidence regarding why they believe guardianship is no longer in their best interest. Some factors that courts often consider are the physical and mental condition of the disabled individual, the disabled individual’s preferences, the guardian’s preferences, a physician’s recommendation, and the financial burden posed on the disabled individual.
PROTECT YOURSELF AND YOUR family BY PREPARING ESTATE PnzN DOCUMENTS
While it is impossible to predict emergencies, proper estate planning can ensure that you and your family members are protected if an unexpected emergency, such as death or disability, arises. If you have proper estate plan documents in place, a conservatorship or guardianship might not be necessary.
Your estate planning lawyer can help you create a revocable living trust, which will allow your successor trustee to step in and manage the assets held in the trust if you become incapacitated. Your trust will lay out the conditions necessary for your successor trustee to take over.
Your estate planning lawyer can also assist you with preparing a will with guardianship appointments included. A guardianship appointment within a will allows a parent to choose whom they wish to take care of their minor children in the event of the parent’s death. By doing so, the parent decides who is best fit (physically, emotionally, and financially) to act as guardian of their minor children, rather than leaving it up to the court to decide.
Additionally, your estate planning lawyer can assist you with preparing powers of lawyer for health care and property, which are essential documents should you become incapacitated. A power of lawyer for health care allows your agent to make medical decisions for you if you are unable to make them yourself. A power of lawyer for property allows your agent to handle your financial affairs during your incapacity. While a power of lawyer and a guardianship are both tools that empower someone to act in your stead if you become incapacitated, with a power of lawyer in place, you choose who you want to act for you. In a guardianship proceeding, the court chooses who will act for you.
Proactive estate planning for emergency circumstances is critical to protect yourself and your family. If you are interested in creating an estate plan, wish to add a guardianship provision to your current estate plan, or have any other estate planning needs, please call estate planning lawyer Jackie Luthringshausen at (847) 705-7555 or email her at
[email protected] for assistance.
