Most people are under the impression that a mentally incompetent person is incapable of creating a will and/or trust. In fact, under Illinois statutory and case law, a disabled, incompetent person is capable of establishing an estate plan through a surrogate decision maker and with the approval of the probate court. A recent Illinois appellate court decision confirmed this principle.
Under the Probate Act, an estate plan can be established for a disabled person through the determination of the ward’s objective “best interest.” A surrogate decision maker will attempt to determine and show the court the decisions the ward would make if he or she were competent to do so. In the event that such wishes cannot be clearly shown, the court will be guided by the more objective “best interest” standard.