In this article, we answer the question, can a guardian create an estate plan on behalf of a ward in Illinois?
This means that, in order to create a valid will or trust for a ward, the guardian must file a petition requesting leave to do so with the probate court that has jurisdiction over the guardianship case.
In creating the estate plan, the guardian of an estate must create the estate plan in the way that the ward would have wished had he or she been of sound mind. In determining whether the estate plan meets this “substituted judgment” standard, the court will consider:
In the petition to create or modify an estate plan for the ward, the guardian must briefly outline the following:
Notice of the petition must be provided to all parties impacted by the prospective changes.
It is important to note that just because an individual has been adjudicated as being disabled and has had a guardian appointed, this does not mean that he or she necessarily lacks the legal ability to execute his or own estate planning documents without the involvement of the guardian.
In order to execute a will or trust, the disabled adult must have testamentary capacity. This means that he or she is able to understand (1) what property he or she possesses; (2) who his or her children and grandchildren are; and (3) what he or she is accomplishing in executing the estate plan. It is possible to have a guardian appointed and still retain testamentary capacity.
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