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Estate Planning & Probate Law FLASHPOINTS September 2019

September 13, 2019Print This Post Print This Post

Margot Gordon, Monahan Law Group, LLC, Chicago
312-419-0252 | E-mail Margot Gordon

Below is an excerpt from §6.1 of ESTATE PLANNING IN ILLINOIS GUARDIANSHIPS — 2019 EDITION.

Role of the Guardian ad Litem in Hearings

While there is no requirement that a guardian ad litem (GAL) be appointed (or, more likely, that a discharged GAL be ordered back into the case), the court will require the assistance of a GAL in all cases with any degree of complexity. Generally, a GAL is charged with representing the best interests of the adult with a disability. In addition, it is possible in the estate planning context that a separate GAL could be appointed to represent the interests of minors who are interested persons or persons not in being. 755 ILCS 5/27-3. In Cook County, the courts routinely appoint a GAL to review any estate planning proposal and to make a recommendation as to whether the proposed plan should be implemented on behalf of the adult with a disability or minor under guardianship. The Illinois appellate court upheld the reappointment of a GAL for an estate planning issue in In re Estate of Michalak, 404 Ill.App.3d 75, 934 N.E.2d 697, 710, 343 Ill.Dec. 373 (1st Dist. 2010).

As a practical matter, because the court will look to the GAL who represents the interests of the adult with a disability or minor for a recommendation, it is often important to win over the GAL in the first instance. The GAL will usually

  1. review the petition filed by the guardian;

  2. to the extent possible discuss the contents of the petition with the adult with a disability (in adult with a disability matters); and

  3. prepare and file with the court a written report that assesses the petition.

In addition, the GAL may or may not make a recommendation to the court.

The assessment is, generally, primarily directed toward protecting the adult with a disability or minor, mostly by seeking to ensure that the estate will always be adequate (even based on very conservative projections) to pay for the adult’s or minor’s needs. For adults with a disability, the GAL will also review whether the proposed plan will carry out the adult’s estate planning intent as far as that is ascertainable. See §§4.2 and 5.3 of this handbook regarding ascertaining the wishes of the adult with a disability.

For more information about financial services, see ESTATE PLANNING IN ILLINOIS GUARDIANSHIPS — 2019 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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