How Does a Living Trust Help Solve Guardianship Problems?

 Posted on January 13, 2025 in Estate Planning

Guardianship is the traditional legal process used to appoint a guardian over someone a court determines is unable to handle their personal or financial affairs. Most people making their estate plan wish to put in place protections to avoid this process should they become incapacitated, given the lack of control and expense it can entail. The main way to do so is to create a living trust, which has several advantages over guardianships. An experienced Yorkville, IL estate planning attorney can help you set up a living trust.

What Is a Guardianship?

Guardianship is a legal mechanism to protect the financial and personal affairs of a person who is deemed by a court to be unable to make basic decisions or manage their finances. A guardian is legally assigned to make decisions about the incapacitated adult’s health care, finances, living arrangements, and more.  Often, guardianships are created to care for people with Alzheimer’s, mental illnesses, or developmental disabilities.

Why Is Guardianship Problematic?

While guardianship is sometimes necessary, it can be problematic. First, the person who is placed under guardianship loses control over basic personal and financial decisions. This loss of autonomy can be very jarring and unpleasant. Second, setting up a guardianship can be expensive and time-consuming. Finally, proving that an individual needs a guardianship in court can be emotionally taxing.

What Is A Living Trust and How Can It Help Avoid Guardianship?

Under Illinois law, a living trust is a trust designed to plan for incapacity by giving an individual the power to decide how they want their personal and financial matters to be handled if they are incapacitated. When a person — the settlor — first sets up a living trust, that person usually also designates themselves as the trustee and beneficiary of the trust. A living trust also designates an alternate trustee to act on behalf of the trust if the settlor becomes incapacitated, at which point the trustee takes over the management of the individual’s affairs. The terms of the trust dictates what happens at this point, avoiding the need for guardianship — and all its problems.

What Are the Benefits of a Living Trust to Plan for Incapacitation?

Arguably the biggest benefit of a living trust is that it allows an individual to make their own decisions about how they wish for their health and finances to be handled if they become incapacitated. Living trusts also avoid the court process for guardianship and all the time and expense that can come along with it.

Living trusts are also fully customizable, giving the settlor further autonomy to choose how they want their money and property to be used if they are incapacitated, taking advantage of a flexibility that is not available under a guardianship.

Contact Our Yorkville, IL Living Trust Attorney 

If you want to plan ahead to avoid guardianship, an experienced Kendall County, IL long-term care planning attorney can set up a living trust for you. At Gateville Law Firm, our attorneys represent clients in multiple aspects of estate planning, including setting up a living trust. We are ready to assist you in the preservation of your wealth and your autonomy as you make your estate plan. Call our offices for a complimentary consultation at 630-780-1034.