This Comment shall discuss and evaluate the guardianship decision-making standard implemented in Estate of Howell as it relates to guardianships of disabled persons, and why Illinois has the best scheme for safeguarding the assets of a disabled adult when a guardian creates an estate plan on his or her behalf. The discussion is based on the holding in Estate of Howell that a guardian may act on behalf of the disabled adult’s interests and therefore the disabled adult’s last will and testament need not conform to the rules of intestacy, because of the hierarchical substituted judgment and best interests rule (sometimes hereinafter “the hierarchical standard”).
The Comment will also discuss the rules of intestacy and why other jurisdictions should change their laws to model Illinois’s laws, which reflect today’s modern family views on disinheriting undeserving family members of the decedent. The background in Part II discusses Estate of Howell and applicable Illinois law regarding guardianships, intestacy, neglectful parents, and the hierarchical standard. Next, the analysis in Part III contrasts Illinois probate law with probate law of other states to demonstrate the impact of different decision-making models used in America. The analysis also compares Illinois and other jurisdictions’ rules of intestacy to highlight Illinois policies that, ensures a decedent’s inheritance descends only to deserving family members. Finally, the proposal in Part IV advocates for other American jurisdictions to adopt not only the hierarchical standard, but also the protections in the Illinois probate code that ensures descendible assets shall not pass to a blood-related family member whom has provided neither care nor affection for his or her child.
Michael Habic, The Impact of Estate of Howell: Guardianship, Heir Misbehavior, and the Modern Family Within Illinois, 50 J. Marshall L. Rev. 615 (2017)