You may have seen the shocking stories and reports, like this one from AARP: https://www.aarp.org/caregiving/financial-legal/info-2018/court-ordered-guardianship-separates-family.html
Sometimes it starts with a well-meaning friend or neighbor, but sometimes it’s a stranger who is a “professional” guardian who comes out of nowhere. Believe it or not, across the country, there have been many stories of (usually) elderly people whose assets are effectively stolen, and lives otherwise turned upside down by complete strangers who just want to take their assets.
There has been some protection in Illinois because of the requirement that a person’s spouse and children (or other “nearest” relatives) be notified in the event someone seeks to be guardian. Advance notice, however, isn’t required for “emergency” guardianships. So, there’s always been that loophole.
Most of the stories we’ve read come from other states, particularly larger metropolitan areas, which is fortunate for most of our clients, but it’s clear that, without more stringent statutes, no one is safe without taking some proactive measures.
The Illinois legislature has passed an amendment to the Guardians of Adults with Disabilities article of the Probate Act, providing that a court does not have the power to appoint someone as a guardian of an adult with disabilities unless that person discloses to the court the number of people he’s currently serving as guardian for. If more than five, then the court is required to notify the Illinois Guardianship and Advocacy Commission within 7 days of the entry of the order appointing guardian. (The Office of the State Guardian and Public Guardians are exempted.) The amendment is effective January 1, 2019.
Now, all that is going to happen for now is that the Illinois Guardianship and Advocacy Commission will keep a list of guardians who oversee more than five wards. There’s not any further oversight mandated. It’s just a first step, but it has a few potential positive consequences:
- It’s the judge’s call: A judge can always look with suspicion on a person who has multiple wards. A judge is not required to appoint such a person as guardian.
- It shows people they’ll be “on the State’s radar,” meaning that some of those who are actually criminals will be scared away. Of course, they may just find workarounds, like using a network of “strawmen.”
- It will be easier to obtain the evidence needed to pursue civil and/or criminal actions against criminal guardians.
Another amendment, which is also effective next year, prohibits an employee of an agency which provides residential services to the disabled person from being appointed guardian.
In the end, we could all be vulnerable if we don’t plan:
First, have an estate plan in which people you trust are in control if and when you become disabled. The starting point is Powers of Attorney. Of course, what these horror stories illustrate is that, as long as you are ostensibly competent, you can change your plan (or be talked into changing it by a con man). So, empower your agents by educating them on the warning signs that you have crossed the line and are vulnerable if a con man comes along.
One of the most significant red flags is isolation. If you live a distance from your family and anyone you’ve named as agent in your Powers of Attorney, you need to develop a safety plan. An Elder Law attorney, working with your financial advisors and even your family can assist you.
Second, maintain your estate plan by changing it to address changes in your life. Surround yourself with trustworthy family and friends who know that one of their purposes in your life is to tell you when it’s time to make changes. Changes to your estate plan might involve the use of or changes to trusts in such a way that your assets may be less vulnerable to attack by a rogue guardian. Again, an Elder Law attorney can provide you with guidance and recommendations.
Make sure you and your family are vigilant and educated.
This article is not intended as legal advice but is provided for informational purposes. Always consult with an attorney experienced in dealing with situations similar to yours. Frisse & Brewster Law Offices are located in Paris and Effingham, Illinois and Terre Haute, Indiana.