Ask an Attorney
My uncle has been significantly declining over the past year. I would like to become his guardian. I know he needs assistance with his personal finances and overall healthcare. What is the process for becoming his guardian?
– Antonio, Oak Park
Antonio, thank you for your question. You can petition the court to become the guardian of his person and his estate. The petition should include what incapacities your uncle suffers from and what you are looking to assist him with. This way you may be able to handle his finances and potentially determine where he will go for healthcare, assisted living, etc. The court will select a Guardian Ad Litem to look out for the best interest of your uncle. He or she will talk with your uncle, other relatives, friends, neighbors, etc. Ultimately, the Guardian Ad Litem will draft a report to provide a recommendation to the court of who should be appointed guardian. The court will then make its decision from there. However, you also need to see if your uncle has any Power of Attorney for Health Care or Power of Attorney for Property documents available. If so, the individual specified in said documents would be responsible for these decisions.
What is the difference between testamentary and contractual capacity? Does my grandmother need both to create a will?
– Beth, Joliet
Testamentary capacity occurs when an individual is of sound mind in that she understands what document is being drafted, the assets owned, and who will be receiving said belongings upon her death. On the opposite side of the spectrum is contractual capacity. Contractual capacity is different than testamentary capacity in that it is a more rigorous standard to meet. For a person to have contractual capacity, she must comprehend the effects of said decision, including the potential consequences involved, as well as the benefits and other alternative possibilities. It is the capacity necessary to enter into a valid contract. Your grandmother needs to meet the standard for testamentary capacity to draft a will. However, if she would like to draft a trust, contractual capacity will be needed.
My mother recently passed away and I was named as the dependent administrator of her estate. What is my role in this position? What is the difference between an independent and dependent administrator of the estate? Is there any way I can alter the court’s decision?
– Julia, Des Plaines
Julia, we appreciate your question. As the dependent administrator of your mother’s estate, you will have to obtain the court’s approval for various decisions involved with handling the estate, including, but not limited to, paying bills and deciphering what happens to your mother’s property. You are still in charge of her estate; however, you need the court’s approval to make some decisions. An independent administrator has more control over the estate. He or she does not need the courts to determine whether certain actions are appropriate. You can petition the court to attempt to alter your role as administrator of your mother’s estate.
Should my husband and I consider drafting estate planning documents or will each of our shares go to the other upon passing?
I am married to another man. I know the laws on marriage equality have changed in recent years. However, neither of us currently have a will or estate planning documents prepared. Should we consider drafting estate planning documents or will each of our shares go to the other upon passing?
– Paul, Rockford
Paul, when someone passes away without a will he or she is said to die intestate. This usually follows intestate succession where the closest surviving relative would receive assets of the estate. This appears to be you, unless your husband has a child or another close relative. It is important to also keep in mind property that you own jointly with your husband. This is called a joint tenancy. Upon one of you passing, the property would go directly to the other. However, you should begin to think about drafting a will and trust or a will. This is important for your overall future.
My mom has been a charitable person all her life. But since dad died 18 months ago, she seems to be donating to every cause. It’s always some new charity she chats about whenever we get together. Is she being ripped off? Are these places really charities? How do I get her to be more thoughtful about the organizations to which she donates?
Unfortunately, charity scams are an increasing problem in today’s society. Many fictitious charities are able to view who you have donated to in the past and tailor their requests based on your past giving. Further, once a scam artist has found a potential victim, they may try to go back to the same person on more than one occasion pretending to be different charities.
If you or your mother have concerns regarding the validity of a charity who has contacted you, tell them you will call them back and take some time to research the charity.
Here are some precautions and steps to take when thinking about donating to a particular cause:
- Does your donation benefit the people and organization you want to help?
- Always do your own due diligence and research the charity. Check for their address, website, and phone number.
- Additionally, there are websites available to further evaluate your desire to donate to a particular cause. For example, you can contact the Better Business Bureau’s Wise Giving Alliance, Charity Navigator, Charity Watch, the National Association of State Charity Officials, and the Illinois Attorney General’s Registered Charities.
Contributor: Kerry Peck