Is Guardianship Estate Planning Changing in Illinois?

Currently, when an adult is disabled and does not have the capacity to plan their own estate, a guardian of the estate can take over estate planning tasks for the individual. This is outlined in 755 ILCS 5/11a-18. While no bills have been introduced into the legislator to change this law, new case law puts the role of the guardian of the estate at risk. For those affected, it could make estate planning much more difficult for those that do not have the capacity to do it themselves.

In the past, when estate guardians planned an estate for their ward, they would typically follow the state’s intestacy laws. However, they could deviate from those rules of intestacy by petitioning the court. That is what could possibly change after the case of re Estate of Rivera.

In the case of Rivera, the Appellate Court of Illinois considered the process to be a duty placed upon guardians for the estate of a disabled person. The court determined that estate guardians should be required to petition the court any time new estate plans are created, or an older plan was modified. The estate guardian would petition the court on behalf of the disabled person. In the plan, the guardian would include only people the estate guardian believes their ward would choose on their own if they had the capacity to do so.

“This case provides a roadmap to guardians for crafting estate plans that deviate from intestacy if the circumstances warrant,” says Steve Novak of Estate & Probate Legal Group.

Guardians of the estate are advised to consider if facts affecting estate planning, such as if a relative is in a poor relationship with the disabled individual, is enough to petition the court to change the estate plan. When they deem the facts do warrant a petition to the court, estate guardians should do so in order to ensure the estate plan is enforceable.

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