CONSERVATORSHIP OF THE PERSON IN ILLINOIS - THE FORGOTTEN PROTECTIVE SERVICE FOR INCOMPETENT CITIZENS

• NCJ Number: 55420
• Journal: UNIVERSITY OF ILLINOIS LAW FORUM Volume: 1977 Issue: 4 Dated: (1977) Pages: 1113-1144
• Author(s): P J MCCONNAUGHAY
• Date Published: 1977
• Length: 32 pages
• Corporate Author: University of Illinois, Urbana-Champaign
• Publication Format: Article
• Language: English
• Country: United States of America
• Note: *This document is currently unavailable from NCJRS.

Annotation

THE UTILITY OF PERSONAL CONSERVATORSHIP AS A PROTECTIVE SERVICE FOR THE INCOMPETENT IS ASSESSED IN THIS CRITICAL EVALUATION OF THE EXISTING ILLINOIS STANDARD GOVERNING THE APPOINTMENT OF PERSONAL CONSERVATORS.

Abstract

THE ILLINOIS INCOMPETENCY STATUTE CONTAINS TWO SUBSECTIONS, THE FIRST DEFINING AS INCOMPETENT ANY PERSON INCAPABLE OF MANAGING HIS OR HER PERSON OR ESTATE BECAUSE OF SOME MENTAL OR PHYSICAL DISABILITY, AND THE SECOND HOLDING THAT AN INDIVIDUAL IS INCOMPETENT IF BECAUSE OF GAMBLING, IDLENESS, DEBAUCHERY, OR THE USE OF DRUGS OR INTOXICANTS, HE OR SHE SPENDS OR WASTES THEIR ESTATE IN A WAY THAT EXPOSES THEM OR THEIR FAMILY TO SUFFERING. CURRENTLY (1977), THE PERSONAL CONSERVATOR RARELY DOES MORE THAN GIVE CONSENT TO MEDICAL TREATMENT OR SECURE ADMISSION OF THE INCOMPETENT TO NURSING OR PRIVATE CARE FACILITIES. THIS LIMITED ROLE IS WHOLLY INADEQUATE TO MEET THE NEEDS OF A MAJORITY OF THE STATE'S INCOMPETENT CITIZENS AND THE COURTS SHOULD REQUIRE A CONSERVATOR TO BE AN ACTIVE, RATHER THAN PASSIVE PROTECTOR OF A WARD'S INTERESTS AND THE ADVOCATE OF A WARD'S LEGAL RIGHTS. MOREOVER, THE COURTS SHOULD ROUTINELY CONSIDER THE UTILITY OF PERSONAL CONSERVATORSHIP BOTH AS A SUPPLEMENT TO AND SUBSTITUTE FOR CIVIL COMMITMENT OF THE MENTALLY DISABLED. THE CONTINUED EFFECTIVENESS OF A CONSERVATOR SHOULD BE ENSURED BY PERIODIC REVIEWS BOTH OF THE PERFORMANCE OF THE CONSERVATOR AND THE NEEDS OF THE INCOMPETENT. THERE ARE TWO COST-EFFECTIVE MEANS BY WHICH PERSONAL CONSERVATORS CAN BE MADE AVAILABLE TO INCOMPETENTS WITHOUT SUBSTANTIAL PERSONAL ASSETS. THE FIRST INVOLVES THE APPOINTMENT OF AN INDIVIDUAL WILLING TO SERVE WITHOUT COMPENSATION, WHILE THE OTHER CALLS FOR A POOLING OF SOCIAL SECURITY AND OTHER PUBLIC ASSISTANCE FUNDS FROM WHICH AN EQUITABLE COMPENSATION COULD BE PAID TO THE CONSERVATOR WITHOUT UNDULY TAXING THE RESOURCE OF THE NEAR-INDIGENT INCOMPETENTS. REFERENCES ARE FOOTNOTED.