Adult Guardianship Facts
What is a Guardian?
A guardian is a person, institution or agency appointed by the Probate Court to manage the affairs of a person with a disability.
Who May Need a Guardian Appointed to Manage Their Affairs?
The law presumes that an adult eighteen years of age or older is capable of handling their own affairs. A guardian may be appointed to serve as a substitute decision maker if a person is disabled because of
- mental deterioration,
- physical incapacity,
- mental illness, or
- developmental disability. The disability must prevent the person from making or communicating responsible decisions about their personal and/or financial affairs.
A guardian may also be appointed if, because of “gambling, idleness, debauchery, or excessive use of intoxicants or drugs”, a person spends or wastes their estate so as to expose themselves or their family to want or suffering.
What are the Steps in the Guardianship Process?
In Illinois, the only way to become guardian for an adult with a disability is to be appointed by the Circuit Court. A minor’s guardianship ends automatically when the child turns eighteen, and an adult guardianship will be necessary if the person who has reached majority still needs a personal and/or financial decision maker.
The procedures for obtaining a court-appointed guardian are set forth in Section 11a of the Illinois Probate Act, 755 ILCS 5/1-1 et seq. Each county circuit court may also have its own practices or rules.
Before starting a court proceeding, one must obtain a Report of Physician certifying that the person is disabled and needs a guardian. The report must be completed and signed by a licensed physician who has evaluated the alleged person with a disability or Respondent within 90 days of the filing of the Petition for Appointment of Guardian. The person(s) who author and sign the report may be needed later to testify in court. It is important that the report contain all of the information required by paragraph 11a- 9 of the Probate Act:
- a description of the nature and type of the respondent’s disability, and an assessment of how the disability impacts on the ability of the respondent to make decisions or to function independently;
- an analysis and results of evaluations of the respondents mental and physical condition and, where appropriate, educational condition, adaptive behavior and social skills, which have been preformed within 3 months of the date of the filing of the petition;
- an opinion as to whether guardianship is needed, and the reasons therefore;
- a recommendation as to the most suitable living arrangement and, where appropriate, treatment or habilitation plan for the respondent and the reasons therefore;
- the signatures of all persons who performed the evaluations upon which the report is based, one of whom shall be a licensed physician and a statement of the certification, license, or other credentials that qualify the evaluators who prepared the report.
The more detailed the report, the more likely it will contain all of the information legally required for the court’s decision. Since many Illinois physicians are unfamiliar with limited guardianship, it is important for the petitioner or their attorney to fully explore the potential for limited guardianship in each case regardless of the initial recommendation of the physician. Total (plenary) guardianship should only be used when the person with disabilities is so incapacitated that they truly cannot make any decisions themselves. The report should accurately reflect the skills and abilities of the person as well as deficits and problems.
Attorney Representation and Other Protections
Although an individual seeking guardianship of the person only may do so without the use of an attorney, the advice of legal counsel may be beneficial. The court requires a guardian of estate to be represented by counsel.
An alleged person with a disability or Respondent has the right to a court appointed attorney and a trial by a jury of six persons. A Respondent also has the right to request an independent medical evaluation, which will be paid from the funds of the Respondent, should they have sufficient assets.
Guardians ad Litem
Most counties in Illinois require the appointment of a guardian ad litem, generally an attorney who is charged with informing the Respondent of the all pending guardianship petitions, informing a Respondent of their rights and inquiring whether the Respondent agrees or objects to the guardianship. The Court also looks to the guardian ad litem to advise it concerning the apparent need for guardianship. It is the duty of the guardian ad litem to report to the court concerning the respondent’s best interests. Although the process described in the Illinois Probate Act anticipates the appointment of guardians ad litem in all cases, many probate courts will waive this requirement if the Respondent appears in person and states they do not object to the appointment of a guardian.
The guardian ad litem must meet with the respondent and tell him about the pending guardianship proceedings, and try to determine the respondent’s position with respect to being adjudicated disabled, the proposed guardian, any changes in residential placement, changes in care that may result from the guardianship, and whatever else the court may deem appropriate. The guardian ad litem files a written report and appears and testifies concerning the appropriateness of guardianship. It is good practice for the petitioner of the petitioner’s attorney to discuss the guardianship case with the guardian ad litem prior to the court hearing.
A Petition for Appointment of Guardian is filed with the Probate Court Clerk, usually along with the report of the physician. A fee will be charged for the filing of the case. The summons, with a copy of the petition attached, is stamped by the clerk and is given to the sheriff or special process server to personally serve the Respondent.
Notice must be sent to certain individuals, with a copy of the petition attached. This includes the proposed guardian, family members, the person with whom the alleged person with disabilities resides, as well as any current, acting guardian of the alleged disabled person.
A hearing date should be set by the court clerk or the judge within 30 days of the filing of the petition, but can be up to 6 weeks.
At the guardianship hearing, it may be necessary to have at least one witness to testify in support of the need for guardianship. In Cook County witnesses are rarely called unless the Respondent contests the appointment of a guardian, or some other unusual circumstance exists. In other counties the judge may require a witness to prove the case even if there is no contest. The doctor is not required to testify unless the court requires it.
The alleged person with disabilities is entitled to attend the hearing. If the person wishes to attend, but has difficulty with mobility or transportation, the court and guardian ad litem should be advised.
Can Guardianship be Used in the Case of an Emergency?
Yes, when the court determines that emergency protection is warranted, a temporary guardian may be appointed. If there is an emergency situation requiring a guardian to be appointed before the hearing on the guardianship petition can be completed, one can ask the court to appoint a temporary guardian until the hearing. A petition for temporary guardianship should be prepared, along with a proposed order for the judge to sign. The court must designate what, if any, notice shall be given, how, and to whom. The court can then appoint a temporary guardian with very specific powers and duties written into the order. The temporary guardianship expires automatically when a permanent guardian is appointed, the guardianship petition is dismissed, or in 60 days, whichever comes first. A temporary guardianship is appropriate only if there is a substantial need. In determining the necessity for temporary guardianship, the immediate welfare and protection of the alleged disabled person and his estate shall be of paramount concern, and the interests of the petitioner, any care provider, or any other party shall not outweigh the interests of the alleged disabled person.
Living Wills, Power of Attorney, Surrogate Decision Makers, and Other Alternatives to Guardianship
Guardianship can be the most restrictive alternative available to a person in need of personal or financial assistance. Guardianship always means the involvement of a court, with the likelihood of a public examination of one’s private affairs. All possible alternatives should be explored before instituting guardianship proceedings. Competent medical and legal professionals, social workers, caretakers, family and friends should consult and agree on a suitable course of action whenever possible.
There are less restrictive means by which someone may act as a surrogate decision maker, including Powers of Attorney, Living Wills, Mental Health Declarations and the Health Care Surrogate Act. A private attorney should be consulted to better understand the nuances of powers of attorney and other types of surrogate decision making.
Who May Act as a Guardian?
Any person at least 18 years of age who is a resident of the United States, has not been convicted of a felony (there are exceptions to this) and has not been adjudicated a person with a disability themselves, may be named guardian of the person or estate of an adult with disabilities. The person must demonstrate to the court an ability to provide an active and suitable program of guardianship.
Any agency, public or private, may serve as guardian of the person or estate, if the court finds that it is capable of providing an active guardianship program. A banking institution may be appointed guardian of the estate but not guardian of the person.
What Types of Guardianship are Available Under Illinois Law?
There are several types of guardianship available under the Illinois Probate Act. It is important that all available options be considered to determine the appropriate form of guardianship for a specific person with disabilities. In each case, consideration should be given to requesting either limited or plenary guardianship. Limited guardianship is used when the person with disabilities can make some, but not all, decisions regarding their personal care and/or finances.
The basic forms guardianship can take follow:
- Limited Guardianship – used when the person with disabilities can make some, but not all, decisions regarding their person and/or estate. The powers of a limited guardian must be specifically listed in the court order. Limited guardianship may be used to appoint a limited guardian of the person, a limited guardian of the estate, or both.
- Plenary Guardianship – used when the “individual’s mental, physical and adaptive limitations” necessitate a guardian who has the power to make all important decisions regarding the individual’s personal care and finances. Plenary guardianship may be used for the person, the estate, or both.
- Temporary Guardianship – used in an emergency situation. Temporary guardianship can last no longer than 60 days and is a means to assure that the person who evidences need for guardianship receives immediate protection.
- Successor Guardianship – used upon the death, disability, or resignation of the initially appointed guardian, when guardianship is still needed.
This information is not to be considered legal advice. If you have questions about it, please contact us.