Almost 30 years ago, Karen Thompson was battling to preserve her relationship with her lover Sharon Kowalski. Sharon and Karen had been lovers for four years when Sharon was struck by a drunk driver in November of 1983 and became severely brain damaged and paralyzed. Sharon's father acquired exclusive guardianship and barred Thompson from seeing Sharon. The nursing home even threatened Thompson with arrest to keep her from visiting her lover.
In February of 1989, 6 years later, the Minnesota district court ruled that Sharon Kowalski could decide her own visitation rules and have herself moved to a facility were she could visit with her lover. Faced with such a long separation, Karen and Sharon had to face the problems of rebuilding their lives together.
Although a court petition to adjudicate a person disabled may be brought by any reputable person over the age of 18 and capable of providing a suitable and active program for the disabled, it is usually brought by a family member. If a family member attempted to have themselves declared legal guardian for their LGBT son or daughter because of an injury or accident the non-disabled lover would be in a perilous situation.
The family guardian would have control over property owned by the disabled lover including one-half of jointly owned property. In a worse case scenario the guardian could ask the court to sell jointly owned property to pay for medical or nursing home expenses. Not only could the non-disabled lover find themselves locked out of the nursing home but they could end up owning their home and bank accounts with the hostile parents of their disabled lover.
By Illinois law, members of LGBT couples can avoid this problem by entering into a Civil Union. Or they could designate each other to be their legal guardian and avoid this legal nightmare. If a designation of guardian is executed and attested in the same manner as a will it will have prima facia validity and will be given preference by a court should the court determine that the one designated will serve the best interests of the disabled person. A Health Care Power of Attorney and Power of Attorney for Property can also provide for the appointment of a guardian over the person and property and can serve the same purpose as a designation of guardian.
