Plenary Guardianship in Illinois

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Plenary Guardianship in Illinois

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 (1) mental deterioration, (2) physical incapacity, (3) mental illness, or (4) 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 is Plenary Guardianship? 

Plenary guardianship is 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.

Who qualifies for Plenary Guardianship? 

A person at least 18 years of age who is totally incapable of making personal and/or financial decisions qualifies for plenary guardianship. 

In general, if powers of attorney for property and/or health care were executed prior to the onset of disability, plenary guardianship is not necessary. This is because the agents under those documents can make property and/or health care decisions. However, if there are circumstances where the agent is unwilling or unable to act, or has acted contrary to the person’s best interests, then plenary guardianship can be appropriate. 

Who can be a Plenary Guardian? 

A nominated plenary guardian must meet the following qualifications: 

  • A resident of the United States;
  • Over the age of 18;
  • Never convicted of a felony (some exceptions); and
  • Never been adjudicated a person with a disability by a court

A plenary guardian of the person will need to submit an “oath of office” and “no surety bond” to the Court in order to act.  A plenary guardian of the estate will need to submit an “oath of office” and “surety bond”, which covers 1.5x the value of the person with a disability’s personal assets in the plenary guardian’s control. If you live outside of Illinois, to be appointed as plenary guardian, you will need to designate an Illinois agent who can accept service on your behalf in the state.      

A professional guardian can be nominated to act as a temporary guardian for a person with a disability.  Professional guardians should be made aware and willing to accept appointment, before you nominate them to act as plenary guardian. There are some  professional guardians who will only act as guardian of the person or as guardian of the estate, and some can do both.  A corporate fiduciary (a bank) can be nominated to act as plenary guardian of the estate.  

How do you get Plenary Guardianship?

The only way to become a legal guardian is to be appointed by the court. The procedures for adult guardianship are set forth by law and include the following: 

  • Petition for Appointment of Guardian – a petition nominating a person or professional guardian to act as plenary guardian must be filed with the Court. 
  • Report of Physician – a physician’s report certifying that the person has a disability and needs a plenary guardian must be obtained. The evaluation must have occurred within 90 days of the filing of the petition. 
  • Notice – notice of the court, date, time, and location must be sent to the alleged person with a disability’s spouse, adult children and siblings, or other close relatives, and agents under powers of attorney for health care and property, at least 14 days prior to the court date. 
  • Summons – the alleged person with a disability must be served with the petition and summons for the court date by the county Sheriff or process server at least 14 days prior to the court date. 
  • Guardian ad Litem – most counties will require the appointment of a Guardian ad Litem. It is the Guardian ad Litem’s job to inform the alleged person with a disability of their rights, which includes the right to be represented by an attorney if they object to the guardianship. The Guardian ad Litem also reports to the court regarding the need for a plenary guardian. 
  • Hearing – the Court will hold a hearing to determine the appointment of a plenary guardian. If there is no objection to the appointment of a plenary guardian by any party to the case, then typically only one hearing is required. However, if there are objections to the person being found disabled or who should act as guardian, then the case can proceed to a trial.

What happens after a Plenary Guardian is appointed?

The plenary guardian will be responsible for ongoing reporting to the court regarding the management of the person with a disability’s person and/or estate. Illinois law lays about many specific requirements and duties for plenary guardians. This includes the plenary guardian of the person filing an Annual Report and the plenary guardian of the estate filing Annual Accountings.

If you have questions about plenary guardianship in Illinois, please contact us. 

Additional resources:

How to Get Temporary Guardianship in Illinois

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How to Get Temporary Guardianship in Illinois

Temporary Guardianship in Illinois allows for the appointment of a short-term guardian (temporary guardian), while the process for the appointment of a long-term (plenary) guardian moves forward in court.  In cases where an emergency exists, and a personal and/or financial decision maker is needed before all of the requirements to appoint a plenary guardian can be met, a temporary guardian can be appointed.  

What You Need Before a Plenary Guardian Can Be Appointed

Before a plenary guardian can be appointed, several things need to take place, including:

  • Personal service of guardianship documents to the alleged person with a disability (Respondent);
  • Notice to Respondent’s spouse, adult children and siblings or other close relatives; and 
  • Appointment of a Guardian ad Litem, who will meet with Respondent (generally, but not in all situations); 

A judge can appoint a temporary guardian of estate, person or both, depending on the specific facts and circumstances related to your case.

What are Examples of Emergencies for Temporary Guardianship?

Ultimately, the assigned judge will decide whether an emergency exists to appoint a temporary guardian. Some examples of cases where temporary guardianships have been granted are: 

  • The Respondent has no one to consent to medical treatment.
  • There is conflict between family members as to what medical treatment is in the Respondent’s best interest.
  • The Respondent is in an unsafe living situation and needs to be transferred to a residential facility placement. 
  • There is a need to restrict someone from visiting with the Respondent.
  • The Respondent’s bills are going unpaid and no one has access to their accounts to make payments for their benefit.
  • The Respondent is being financially exploited and accounts need to be frozen.

The circumstances where a temporary guardianship in Illinois can be granted are specific and must be assessed on a case-by-case basis.  At Dutton Casey & Mesoloras, our attorneys can assess the specific facts of your matter and determine whether it is likely the Court will appoint a temporary guardian.  

Who Qualifies to Act as Temporary Guardian?  

The qualifications for who can act as a temporary guardian are the same as those for a plenary guardian.  A nominated temporary guardian must meet the following qualifications: 

  • A resident of the United States;
  • Over the age of 18;
  • Never convicted of a felony (some exceptions); and
  • Never been adjudicated a person with a disability by a court

Any temporary guardian of the person will need to submit an “oath of office” and “no surety bond” to the Court in order to act as temporary guardian of the person.  A temporary guardian of the estate will need to submit an “oath of office” and “surety bond”, which covers 1.5x the value of the Respondent’s personal assets in the temporary guardian’s control. If you live outside of Illinois, to be appointed as temporary guardian, you will need to designate an Illinois agent who can accept service on your behalf in the state.      

A professional guardian can be nominated to act as a temporary guardian for a Repondent.  Professional guardians should be made aware and willing to accept appointment, before you nominate them to act as temporary guardian. There are some professional guardians who will only act as guardian of the person or as guardian of the estate, and some can do both.  A corporate fiduciary (a bank) can be nominated to act as temporary guardian of the estate.  

Procedure for Temporary Guardianship

File a Petition

In order to petition for temporary guardianship in Illinois, you must first file a Petition for Appointment of Guardian, nominating a person or professional guardian to act as plenary or limited guardian for the Respondent.  The Petition for Appointment of Temporary Guardian can be filed at the same time or any time before a plenary or limited guardian is appointed.  Therefore, while an emergency may not exist at the time of filing of the plenary petition, if one arises, a Petition for Appointment of Temporary Guardian can be filed.

Request Specific Authorities

A nominated temporary guardian must request the specific authorities they are requesting from the Court in their petition.  A temporary guardian will only be granted certain specific authorities in an Order Appointing Temporary Guardian, and cannot act outside of those authorities without an additional court order.  It’s important to identify which authorities a temporary guardian may need before filing the petition.  

Request Emergency Hearing Date

Once the temporary guardianship petition is filed, your attorney will request an emergency hearing date and present the petition before the assigned judge.  Any nominated temporary guardian must be present at the hearing to answer the qualifying questions under oath.  If the judge finds there is an emergency, they can appoint a temporary guardian of person, estate or both.  

Watch the Deadlines

An appointment of a temporary guardianship is only valid for 60 days, and can be extended for an additional 60 days, with the Court’s approval.  A new temporary guardianship petition will need to be filed and a new hearing will take place, if after 120 days, a temporary guardian is still needed.  

Ending a Temporary Guardianship

Once the Petition for Appointment of Guardian is ultimately addressed, either the temporary guardianship will lapse or the judge will discharge the temporary guardian.  Any temporary guardian who has controlled estate assets will be required to present and have an accounting approved by the Court.    

 
If you have any questions about how to get temporary guardianship in Illinois, please contact us.

Tips For Helping Family Members With Finances

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Tips For Helping Family Members With Finances

A frequent challenge is how to help older family members with their finances without taking away their autonomy or getting into a tug-of-war over the issue. Concerns often arise when visiting loved ones and finding that bills have not been paid, papers are in disorder, or even that utilities have been cut off. It’s not unusual to find family members defrauded by predators or going on a shopping spree on the Home Shopping Network.

All relationships are different. Some older adults freely share financial information with their loved ones and readily let them participate in bill paying and investment decisions. Others hold onto control as if their lives depended upon it—and well it might, to the extent that they would lose their identity along with their checkbook. They may even suspect their loved ones of wanting to take their money.

There’s no single answer for every situation. The following, however, are approaches that have worked for our clients in the past:

  • Offer to help with bill paying. Permit the older adult to continue to control the checkbook, but schedule a monthly sit-down to go through all of the bills that have accumulated. The family member writes out the checks and the older person signs them.
  • Use the Internet. With on-line access to accounts, you can monitor them. If unusual payments or transfers occur, actions can be taken, rather than waiting to review monthly statements.
  • Segregate accounts. Leave the older adult in charge of the family checking account, but take control of investment accounts. This will leave only smaller amounts at risk, rather than the person’s entire estate.
  • Make sure the older adult does estate planning while competent. Through properly-executed durable powers of attorney and revocable living trusts, loved ones can step in when needed.
  • “Play” on family responsibility. While it is contrary to the traditional “parent-child relationships” for the child to handle the parent’s finances, it is consistent for the parent to take care of their child, no matter what their age. Explain the need to help with finances as a way to put the adult child’s mind at ease, rather than as a response to the parent’s increasing need for assistance. Stress that this is something the parent can do for the child, rather than the other way around.
  • If all else fails, it may be necessary for the family member to seek court appointment as guardian or conservator over the older person’s finances. While this gives the guardian complete control, it removes the older person’s right to make any financial or legal decisions. This can be very difficult emotionally and financially because it involves legal costs, periodic reporting to the court and, in some instances, the necessity of seeking court approval for expenditures or estate and long-term care planning steps that could be carried out freely under a durable power of attorney or revocable living trust.

Just as there is no single answer for every family situation, it may be necessary to try various interventions to determine which one(s) works best.

This information is not to be considered legal advice. If you have questions about this blog, please contact us.

The Presumptively Void Transfers Act

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Another Tool To Protect Vulnerable Adults

It might be too late to assist the family of Ernie Banks, whose will was changed in 2014 to the benefit of his caregiver, but this statutory tool will protect others from being victimized by non-family caregivers of persons requiring care. Attorney Janna Dutton, an active advocate for vulnerable adults for over 30 years, as a member of the Illinois National Academy of Elder Law Attorneys wrote a new section of the Probate Act, “Presumptively Void Transfers” Public Act 098-1093.

Signed by the Governor in August, 2014 and effective January 1, 2015, the purpose of the Presumptively Void Transfers act is to prevent non-family caregivers from taking advantage of the persons they are caring for by influencing them to make a will or sign other legal instruments which transfer property to the caregiver at the person’s death. Basically, the statute provides that, if a “transfer instrument” is challenged by another person (likely a family member of the deceased person) in a court proceeding, there is a presumption that the instrument is void if the beneficiary is a “caregiver” and the transfer exceeds $20,000.00.

Under the statute, a person is considered a caregiver if they are providing assistance with activities of daily living to another person, whether paid or unpaid. Close family members are not considered to be caregivers even if they are providing care.

Under the Presumptively Void Transfers statute, once the presumption is in place, the transfer instrument remains effective only if the caregiver-beneficiary can prove one of the following:

  1. The caregiver-beneficiary proves by clear and convincing evidence that the transfer was not the product of fraud, duress or undue influence; or
  2. By showing that the beneficiary’s share under the transfer instrument is not greater than the beneficiary’s share already in effect prior to becoming a caregiver.

If the presumption is present and the caregiver was not previously in the deceased person’s estate plan, the transfer instrument is void and ineffective if the caregiver is unable to prove the will or other instrument was written (or changed) entirely independently of the caregiver’s assistance or influence.

If the Presumptively Void Transfer Statute was applicable to Ernie Banks’ Will signed in 2014 shortly before his death, his family would have a much easier time undoing the Will. To preserve the new Will, the caregiver would be required to prove Ernie Banks changed his Will entirely independently of her. Given the facts reported in

the press, that Mr. Banks had dementia and used the services of a new attorney instead of his long time estate planning attorney, it appears that would be unlikely.

To Read the Act; please go here. 

This information is not to be considered legal advice. If you have questions about this topic, please contact us.

Resources:

National Elder Law Foundation

National Academy of Elder Law Attorneys

Adult Guardianship Facts

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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

    1. mental deterioration,
    2. physical incapacity,
    3. mental illness, or
    4. 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.

Preliminary Steps

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:

    1. 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;
    2. 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;
    3. an opinion as to whether guardianship is needed, and the reasons therefore;
    4. a recommendation as to the most suitable living arrangement and, where appropriate, treatment or habilitation plan for the respondent and the reasons therefore;
    5. 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.

Court Procedures

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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.