In my high school psychology class, my history teacher came and spoke to us one day about his disabled son. He read to us a short story in which he compared having a disabled child to a trip to Europe. The story began with a couple planning to go to Italy to tour all of the beautiful sights in Italy, however, instead of landing in Italy, the couple landed in Holland. While the couple was initially shocked at landing in Holland, they came to appreciate Holland’s beautiful landscapes, windmills, and tulips. In short, they found beauty and comfort in their surprise trip.
The surprise trip is an allegory to having a disabled child. Having a disabled child may be an initial shock; but, in the end, having a disabled child is as awarding if not more so, than having a non-disabled child. In working with many clients of disabled children, I have seen some great examples of parenting, and I have been inspired by them.
Inevitably, our children grow up, including our disabled children. One subject that gets little attention is how to protect a disabled child once he or she becomes an adult. This short article will give help parents of disabled children understand the process of establishing guardianship of adult children.
Under Illinois law, a person who is 18 years or older is presumed to be an adult, regardless of physical or mental capabilities. Absent some determination of incapacity, a person who turns 18 becomes free to make decisions and be responsible for his or her own actions. An adult with significant disabilities, however, may be unable to manage his or her own affairs. Adults with significant disabilities are dependent on other people who need to have the legal authority to care for them, manage their affairs and make decisions for them.
The responsibility of caring for a disabled adult often falls on parents or other family members. Healthcare providers, including doctors, pharmacists, and therapists, require proof of legal authority for one person to make personal and healthcare decisions for another person who is an adult. Health care providers will not even discuss or share health care information without some waiver of privacy or other authority. The legal means to accomplish this is through a guardianship proceeding.
A guardianship proceeding is handled through the court system pursuant to the Probate Act (755 ILCS 5/11A-1 et seq.) The process begins by filing a petition for guardianship, obtaining a physician’s report and providing notice to the persons entitled to receive the notice who are identified in the Act (the closest adult relative including parents and adult siblings). Many counties have forms available online through the local clerk of the circuit court’s website.
After notices are given as required by law, an initial court date will be set in which the judge will appoint a guardian ad litem. The purpose of the guardian ad litem is to determine that a guardianship is warranted and that the proposed guardian is suitable. A guardian ad litem becomes the eyes and ears of the judge. A request can make to bypass the appointment of a guardian ad litem, which creates delay and increases cost Judges may waive the guardian ad litem appointment, especially when a natural parent is seeking guardianship before the child turns 18.
In fact, the entire process can be streamlined if it is begun before the child turns 18. Before a child turns 18, a parent still has legal authority over the child so service on the child is not separately required. Presumptions in favor of the parents apply, and the appointment is usually perfunctory. After a child reaches adulthood (18), judges are required by law to impose the procedural safeguards required for adults.
There are some additional considerations to bear in mind. Parents should consider establishing a special needs trust that will allow the disabled adult to qualify for government assistance while making assets available for things other than base support and health care. Divorced parents may want to discuss and plan for care for their child who is a disabled adult in their divorce decree. A disabled adult may be eligible for support from one or both parents under 750 ILCS 5/513. Unlike child support under 750 ILCS 5/505, the responsibility of the parents to contribute to the needs of their adult children is not set as a specific percentage of net income; rather it is determined by the financial needs of the child and the respective ability of the parents to contribute to those needs.
As with anything, advance planning and thought can save time, cost and frustration down the road. Caring for a disabled child who is now an adult can present legal obstacles that are not issues while the child is a still minor. Planning for the care and management of a disabled child’s needs before reaching adulthood is highly recommended. If you are beyond that point, and your disabled child has already reached legal adulthood, there is no reason to lose heart. The law provides a relatively easy means for establishing the authority for you to continue caring for your child and making the decisions that need to be made through the means of a legal guardianship.
Roman J. Seckel
Drendel & Jansons Law Group
111 Flinn Street
Batavia, IL 60510
(630) 406-6179 fax
For more articles on estate planning topics, see the Fox Valley Estate Planning Blog.
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