An Intro to Guardianships, and The Health Care Surrogate Act

This month's Illinois Bar Journal features an article by Helen W. Gunnarsson entitled "Help Your Client Choose the Right Advance Directive" (the link is here). Much of the article covers issues I've already discussed here -- how powers of attorney for health care are more flexible than living wills, the importance of making your wishes known, and the danger of abuse by an unscrupulous agent. But there are some helpful points in the "sidebars" at the end of the article, where Ms. Gunnarsson discusses advance directive resources as well as the Health Care Surrogate Act (the "Act"). The Act has been referred to as "the procrastinator's health care power of attorney," and allows health care decision making to take place without the need for a guardianship proceeding.

Guardianship is to disabled people and minors what probate is to decedents -- the court is overseeing the administration of the property of someone who can't do it for himself or herself. (In addition, because the disabled person or minor is still alive and may be vulnerable, the court needs to concern itself with the disabled person or minor's care.) But, while I've talked about how probate isn't all that time-consuming or expensive, the same isn't true for guardianship -- it's a royal pain in the neck. Given this fact, it might be a good idea to review guardianship substitutes.

I would first note that there are really two types of guardians:

(1) the guardian of the estate, who deals with the property of the disabled person (aka "the ward"); and

(2) the guardian of the person, who handles the ward's living arrangements, care, etc.

Substitutes for Guardian of the Estate

If a person established and transferred his or her property to a living trust prior to disability and the trust document allows it (which it should), the trustee can administer the property for the person's benefit. That includes making distributions to or for the benefit of the person. (Usually the creator of a living trust will be the trustee of the trust when it's created, but the trust document should provide an easy mechanism for the trustee's removal in the case of the trustee's disability.)
If a person executed a property power of attorney prior to disability, the agent can use it to manage the person's property for the person's benefit. Setting up a living trust but failing to transfer property to it is a common estate planning error; as a result, I always include a provision in my property power of attorney documents allowing the agent to begin or finish the transfer of property to any living trust previously established by the person.

Substitutes for Guardian of the Person

If a person executed a health care power of attorney prior to disability, the agent can make health care decisions for the person.
The Health Care Surrogate Act can be used if a person didn't execute a health care power of attorney prior to disability. Of course, as with many other issues, the drafters of the Act make certain assumptions about who the person would have wanted to make health care decisions on his or her behalf -- these assumptions may not reflect the wishes of any particular individual.