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.