Legal Considerations
There are many legal elements to consider when planning for the future. These items should be carefully considered, as they are personal and dependent on specific individuals and families. For further detailed information on these topics, you may choose to seek legal counsel from an attorney who specializes in these areas.
See also: FINANCIAL PLANNING
Guardianship
After an individual reaches adulthood (age 18), their parents are no longer their legal guardians. A guardianship proceeding allows a court to give someone the authority to make decisions and manage the affairs of a person who, because of a disability, cannot manage his or her own affairs. Guardianship is not automatic!
Although a young adult who has a severe disability may remain in the family home, in the eyes of the law, he or she is competent until proven otherwise. This is true even in cases where most people would agree that the person is clearly incapable of self-direction.
Why obtain guardianship?
If a person is incapable of making or communicating responsible or safe decisions, guardianship puts this decision-making power in the hands of someone more capable.
Persons without guardians are legally capable of making their own decisions. The fact that parents are not legal guardians may cause problems for the family in many circumstances; most adult service providers will naturally involve family members in decision-making circumstances and planning in any case. Without legal guardianship, parents do not have legal rights to enforce their decisions about their child. Service providers, such as hospitals, residential programs, vocational programs, etc. are legally obligated to treat a service recipient as capable of making his or her own decisions unless that person has had a legal guardian appointed by the court. Without guardianship, service providers have no legal right to treat a family member as the "official decision-maker" for that person.
Types of Guardianship
Courts differentiate between guardianship of the person and of the estate. Guardianship of the person gives the guardian the power to make decisions about personal life, such as where the person should live, what medical procedures they should undergo, whether they marry, etc. Guardianship of the estate gives the guardian the right to make decisions about the management of the person's property and finances.
Co-Guardianship is also available. In that case, more than one person shares the responsibilities of guardianship. For instance, a mother and father, or a parent and sibling of the person.
Limited guardianship is another option. Limited guardianship is a court order customized to fit the precise needs of the individual with a disability.
How to seek Guardianship
To obtain guardianship, the potential guardian must first petition the court to have the person declared incompetent. In a legal context, "incompetent" means the person is not able to make or communicate responsible and safe decisions without help. Paperwork must be completed and a physician's statement must be obtained certifying that the person is permanently and significantly disabled to the point of being incapable of self-direction.
If these steps support the claim that the person needs guardianship, and no one opposes the petition to have the person declared incompetent, the court will issue a declaration to that effect and award guardianship. Unless there are other parties seeking guardianship or opposing the award of guardianship to the person who initiated the proceedings, the court will simply give guardianship to the person requesting it.
Where to find assistance in seeking guardianship
Families may hire an attorney to assist with the guardianship process or can complete the paperwork on their own. The Office of State Guardian, located in the county of residence, may be accessed by the family at no cost.
Cook County Guardianship of a Disabled Adult - Adult Guardianship Help Desk
Location: Richard J. Daley Center
12th Floor, Room 1202
50 West Washington Street
Chicago, IL 60602
The Help Desk provides assistance with petitioning for guardianship of a disabled adult and understanding the court procedure. The staff will help you fill out forms, but they do not offer legal advice. Assistance is for filing a petition for guardianship of the person only, not of the estate.
Cook County Guardianship of a Minor - Guardianship Assistance Desk for Minors
Location: 69 West Washington Street, Room 1020,
Chicago, IL 60602
(across the street from the Richard J. Daley Center)
Phone: (312) 603-0135
The Help Desk provides assistance with petitioning the guardianship of a minor. The staff will help you fill out court forms. Assistance is for filing a petition for guardianship of the person only, not of the estate. Referrals are given for more complex cases. The help desk also offers self-help packets if you wish to prepare your own forms. The packets have forms with instructions on how you should be prepared and explanations of guardianship requirements.
Brochure: Guardianship for Minors: What Prospective Guardians Need to Know, 2016
Lake County Guardianship of a Disabled Adult
Clerk of Circuit Court- Probate Department
Location: 18 N. County Street
Waukegan, IL 60085
Phone: (847) 377-3380 - Main Phone
(847) 377-3260 - Probate
Hours: All Circuit Clerk Locations open 8:30am-5pm, Monday - Friday
Located in the basement of the Lake County Courthouse and Administrative Complex at 18 N. County Street, the Lake County Circuit Clerk's Main Branch offers a variety of services and departments. Visitors may enter the building through the new Criminal Court Tower located at 301 Washington Street or through the north entrance of the Court Complex located near the County parking garage.
Click here to learn more about how Guardianship and POA compare.
Legal/Financial Planning Resources
Attorneys for families with children with special needs: (Special needs trusts, estate planning, guardianship, etc.)
Spain, Spain, and Varnet Rubin Law
Theresa Varnet, Richard & Nancy Spain Brian Rubin and Benjamin Rubin
33 North Dearborn Street, Suite 2220 1110 West Lake Cook Road
Chicago, IL 60602 Buffalo Grove, IL 60089
(312) 220-9112 (847) 279-7999
Rivkin & Rivkin, LLC Estate Planning L. Mark Russell
440 Milwaukee Avenue, Suite 200 401 E. Prospect Avenue, Suite 106
Lincolnshire, IL 60069 Mt. Prospect, IL 60056
(847) 793-2484 (847) 991-7451
The Dignity Group Amy Handler Kasallis
Thomas J. Reilly Amy@kasallislaw.com
1163 Ogden, Suite 705-354 500 Lake Cook Road, Suite 350
Naperville, IL 60363 Deerfield, IL 60015
(630) 681-1119 (773) 370-1856
National Alliance to help locate attorneys for special needs
(877) 572-8472
Special Education, Disability Rights, & Human Services Law
Letter of Intent
The Letter of Intent is a personal roadmap. It is designed to give successor caregivers and trustees the realistic information they need to carry on effectively as caregivers after parents (or other family members) can no longer provide the care themselves. It places all of your wishes and expectations into-one document, and could alleviate concerns that caregivers and trustees might have about how they can best fulfill expected family obligations.
Those wishes and expectations will allow family members and others to assume responsibility for your loved one's care in the event that you are no longer able to do so. This is a living document that should be reviewed and updated annually.
Below is a template. Supplementing this with a video, IEP copies, a Medicaid waiver application, etc. will help someone who is to care for your loved one.
Power of Attorney
A power of attorney is authorized to act on someone else's behalf in a legal or business matter. Just as important as obtaining guardianship, your child will need guidance when making decisions and handling affairs. Durable Power of Attorney is an alternative to guardianship. Individuals who are in need of only minimal intervention by a substitute decision-maker may be more appropriately protected by use of a Durable Power of Attorney either of the person or of property or both. This does not require a court hearing.
Click here to learn more about how Guardianship and POA compare.
Selective Services
All male U.S. citizens living in the U.S. who are 18 through 25 years of age are required to register with Selective Services. Even though a male is registered, it does not automatically mean that he will be inducted into the military.
Non-Citizens
Some non-citizens are required to register. All male non-citizens are required to register, including illegal aliens, legal permanent residents and refugees. If a male non-citizen becomes a resident in the U.S. before his 26th birthday, he must register with the Selective Service.
Hospitalized or Incarcerated Men
Men in hospitals, mental institutions, or prisons do not have to register while they are committed. They must register 30 days after being released if they have not yet reached their 26th birthday.
Men with disabilities
Men with disabilities who live at home must register with Selective Services if they can reasonably function in public and without assistance. A male with a disability may receive assistance to complete the form if needed. The Selective Service does not presently have the authority to classify men, so even men with obvious handicaps must register now, and if needed, classifications will be determined later. Some disabilities, it would seem, would be cause for disqualification. It is necessary to register anyway.
To register for the Selective Service, go to http://www.sss.gov and click on "register online."
State of Illinois State ID
All adults in the state of Illinois need a photo ID. Many people obtain a driver's license. However, if any adult does not drive, a photo ID may be obtained from a local Secretary of State's office. You can obtain a typical ID card or receive a card for persons with a disability. In order to obtain a disability ID, you need to complete an application and have it signed by a doctor familiar with the person with the disability. ID cards for disabled persons are free. Click here for the application.
Follow this link to learn more about REAL ID
Local Office: Deerfield Secretary of State's Facility
Deerfield Park Plaza
405 Lake Cook Rd
Deerfield, IL 6001