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Estate Planning & Probate Law FLASHPOINTS January 2019

January 15, 2019Print This Post Print This Post

Ruben M. Garcia, Ruben M. Garcia & Associates, Ltd., Wilmette
847-728-0808 | E-mail Ruben M. Garcia

Below is an excerpt from §1.2 of ADULT GUARDIANSHIPS, ADVANCE DIRECTIVES, AND MENTAL HEALTH LAW — 2018 EDITION.

Physical Incapacity Alone Does Not Necessarily Equal Incompetency

[I]t is not necessary that the person be able to carry out the decisions he or she makes without help: “The capability to manage one’s person does not resolve itself upon the question of whether the individual can accomplish tasks without assistance but rather whether that individual has the capability to take care and intelligently direct that all his needs are met through whatever device is reasonably available under the circumstances.” McPeak, supra, 368 N.E.2d at 960. In Loss v. Loss, 25 Ill.2d 515, 185 N.E.2d 228, 229 (1962), the court, quoting MacDonald v. LaSalle National Bank, 11 Ill.2d 122, 142 N.E.2d 58 (1957), held that the Probate Act “does not permit a finding of incompetency or the appointment of a conservator for physical incapacity alone, but expressly provides that, before physical incapacity is sufficient to permit such adjudication and appointment, it must be such as to render the person ‘incapable of managing his person or estate.’ ” In this way, the justification for the appointment of a conservator is founded primarily on the incapacity of managing one’s person or estate and not on the cause of the incapacity. In re Estate of Stevenson, 44 Ill.2d 525, 256 N.E.2d 766, 769 (1970).

For more information about estate planning and probate, see ADULT GUARDIANSHIPS, ADVANCE DIRECTIVES, AND MENTAL HEALTH LAW — 2018 EDITION. Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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