Guardianship and Incapacity Issues: How a Living Trust Solves These Problems

 Posted on April 09, 2025 in Estate Planning

A guardianship matter is a legal matter where a court appoints a person called a "guardian" to make decisions for someone who lacks the capacity to make their own decisions. In this article, we are discussing what happens when a guardian is appointed for a disabled adult. Incapacity generally means a person lacks the ability to make informed decisions about their finances, health, and daily decisions. If you are dealing with these types of issues, speak with a qualified Illinois estate planning lawyer to learn more about your options. 

What Are Incapacity Issues?

Generally, incapacity and guardianship occur due to the following:

·       Stroke or brain injury

·       Mental illness

·       Several physical illnesses or disability

·       Dementia or Alzheimer’s

·       Autism spectrum disorder

·       Cerebral Palsy

·       Tourette Syndrome

·       Coma or unconsciousness after an accident

When a person lacks the mental capacity to make their own decisions, they lack the ability to establish the power of attorney or a living trust. The person’s loved ones cannot legally arrange the affairs of their relative. Financial institutions, healthcare providers, and government agencies will force the family to file a guardianship case and gain the appropriate court paperwork and authorization before releasing information or providing them with decision-making authority regarding accounts.

How Does Guardianship Work?

Guardianship court-supervised procedures involve the following:

·       Public proceedings: Court proceedings are public and can pit family members against each other.

·       Time: Courts are busy and often do not make quick decisions like people do. Guardianship courts often require court orders before a person can make a decision for the ward (the person who is incapacitated).

·       Expenses: Court proceedings and hiring attorneys cost money and annual accounting requirements can add up quickly.

·       Commitment: Guardianship court will require multiple proceedings to get guardians temporary and/or plenary appointed and attorneys for the disabled adult appointed. The court’s decision-making and annual accounting requirements can turn all of this into a long-term commitment.

·       Family Conflict: Court matters often involve conflict, which can strain family relationships. Legal proceedings force loved ones to take sides, question each other’s intentions, and compete for control. These times are already stressful, involving illness and strain on family members caring for their loved ones.

Often, a financial institution may reject the powers of attorney. Powers of attorney are a serious area of concern because of financial and elder abuse. These areas are high liability concerns for a bank or financial institution. This often leads families back to guardianship court despite having basic safeguards in place. Long-term care illnesses and mental decline are on the rise and the need for solutions is increasing.

How Does a Living Trust Solve This Problem?

A Revocable Living Trust is a private legal document that can help you avoid the need for a guardianship proceeding. The key issue is making sure the living trust is properly set up and funded. Here at Gateville Law Firm, we work with our clients and explain how to properly set up and administer a Living Trust. The Living Trust will own the assets of the incapacitated person, and the process in the Living Trust calls for the appointment of a successor trustee, as indicated in the living trust agreement.

Unlike assets that are titled in a person’s individual name, a Living Trust has built up backup plans and scenarios that are established in advance that can help a family without court involvement. This gives the family peace of mind, a strategic plan, and reduced family strife. The successor trustee also saves the family time and money because he or she can manage investments, pay bills, handle real estate mortgages, and make transactions.

The living trust also provides clarity and a clear game plan in case of an emergency because the creator of a trust, called the "trustor" or "trust maker", made an informed decision with an experienced estate planning attorney. The living trust agreement outlines the succession order and spells out clear instructions for who is in charge and how decisions are made. This helps minimize disputes among family members and reduces the need for attorneys and courts. Decisions can be made quickly and can differ from what would likely happen if a court was involved.

A living trust also allows for a peaceful process, with a smooth, immediate transition.

Furthermore, real estate and business assets can be managed because the disabled adult placed them in the name of the living trust. A successor trustee can manage, sell, or lease those properties with ease and without the need for a court order.

A Living Trust Creates a Smooth Process Upon a Death as Well

A living trust also creates a smooth transfer upon a death as well. Unlike a will, a living trust prepares for incapacity and death. A will is generally only exercised at death and requires court proceedings for approval. Approving a living will requires a court-supervised legal process, which necessitates hiring an attorney, and it is time-consuming. With a proper Living Trust, your family gets peace of mind and can settle your loved one’s financial affairs efficiently, privately, and without court involvement.

Call a Plainfield, IL Living Trust Lawyer

A Living Trust is a powerful estate planning tool to protect your loved ones from the burdens of court involvement during a health crisis. A Living Trust provides a clear, precise plan that keeps your family’s finances and affairs private without being played out in a public court proceeding. A Living Trust Package generally includes the following:

·       Durable Powers of Attorney for Property and Finances

·       Advanced Healthcare Directives and HIPAA Release

·       Pour Over Will

·       Living Trust

·       Certificate of Trust and more documents

At Gateville Law Firm, we help families across the Plainfield, Oswego, Aurora, Joliet, Sandwich, and surrounding areas prevent guardianship and keep control in the hands of people who you trust. Call a Plano, IL estate planning lawyer at 630-780-1034 to learn more.