A general overview of the Illinois Guardianship process will explain what Illinois Guardianship is, how to start the Guardianship process in Illinois, and what documents may be needed to initiate the Guardianship action in court. There have been no significant changes to Illinois Guardianship laws for 2024, but this article will cover previous most recent changes from the past couple years.
Effective January 1, 2023, Illinois Public Act 102-770 (P.A. 102-770) will amend the Illinois Probate Act of 1975 to require training for all guardians appointed over the persons of individuals with disabilities. Guardians appointed over individuals with disabilities will be required to complete this training.
As of January 1st, 2022, the court may now appoint multiple persons or entities to act as a guardian over a person and or his property. Those guardians are entitled to receive reasonable fees and compensation for their services, and they have a first-class claim to a deceased ward’s estate. New changes to Illinois law also provide that in a minor guardianship proceeding the Guardian ad Litem owes a duty to the minor child and must act in the best interests of the child/ward. The Guardian ad Litem is also now required to submit a written report to the court or testimony concerning whether Guardianship is appropriate or not for the potential minor ward.
What is Guardianship in Illinois?
A guardian is a person who is appointed by the court to care for someone else, the person that is being cared for is called a “ward” the court will act in the best interests of the ward and appoint a proper guardian to take care of a person who has become mentally incapable of making their own decisions, someone that has become physically incapable of making their own decisions, or someone that suffers from a severe mental disability.
The mental disability must be severe enough that it makes the person unable to make or determine important decisions pertaining to the person's personal or financial dealings. guardian being appointed by the court may be proper in situations where the person is addicted to drugs alcohol or gambling. A person may also need a guardian where they spend or waste their own money in a way that it injures their family. The most important thing in guardianship is to protect a person who is mentally impaired from poor decision making so that they do not waste all of their money and assets due to this mental impairment.
Starting the Guardianship Process in Illinois
A person needs to be appointed by a Probate court in Illinois in order to act as a guardian for a ward who is over the age of majority which is 18 years of age in Illinois. A parent is no longer responsible as a guardian for their children after the children reach the age of majority in Illinois which is age 18. To begin the guardianship process a person seeking to be a guardian must get a licensed Illinois doctor’s report that determines that the potential ward is mentally or physically impaired enough in order to need a guardian. The doctor must sign this report and contain the following information:
- The type of disability the potential ward is suffering from and how much of an impact that disability or impairment affects the potential wards decision making or ability to make functional decisions pertaining to their financial and personal dealings.
- The doctor’s opinion concerning the potential ward pertaining to the potential ward’s mental and or physical condition. All of this must be within 3 months of the date of the guardianships filing with the court,
- Whether or not the doctor believes that guardianship I needed in the current situation.
- The doctor’s opinion on whether or not the potential ward needs to live in a nursing home or if they may live elsewhere and a treatment plan for the mental condition that is causing the ward to suffer a mental impairment.
- The signature of the doctor and the doctor's credentials license ID number and the doctor's specialty area of practice.
It is important to note that the doctor must give a thorough examination of the potential ward and must list his or her findings in explicit detail so that the court may determine the proper decision. A good doctors report with be detailed with a descriptive information about the mental or physical condition and impairment.
What Is A Guardian Ad Litem In Illinois?
You may be wondering what a Guardian ad Litem, is and what role they will play in a guardianship proceeding. A Guardian ad Litem can be someone who has education or training in the mental health field i.e. a non-attorney, however, most often it will be an attorney. The Guardian ad Litem essentially acts independently from the petitioner and advocates for the best interests of the potential ward and The Guardian ad Litem owes a duty to the potential ward to act in the best interest of the potential ward, as part of this duty the Guardian ad litem will meet with the potential ward and try to determine the nature and extent of the mental incapacity that the potential ward may be suffering from. After filing a report with the court the guardian ad litem will testify in open court concerning whether or not the potential ward is in need of guardianship or not.
Documents Needed for the Guardianship Process
The following documents need to be prepared for the Guardianship process:
- A Petition - The person seeking guardianship will file a Petition for Guardianship.
- Rights Notice - A statement of the potential ward's rights under the Illinois Probate Act.
- Summons - The potential ward must be properly served with this document, which describes the guardianship hearing and gives the potential ward notice of the guardianship cause of action.
- Notice to Interested Parties - This gives the potential wards family, the person seeking Guardianship, and the person or family member where the potential ward lives with notice of the Guardianship court action, the time and location of the hearings and the courts physical address, room number, and the Judge which will be presiding over the Guardianship cause of action.
- Order - The Order that is presented to the Judge for his or her approval if the Court determines that guardianship over the potential ward is necessary and proper.
- Oath - This is essentially the agreement of the potential Guardian and potential ward.
- Bond - This is an agreement that the potential Guardian will be financially liable to the potential ward's estate. The court in its discretion may need someone to co-sign the bond, or the court in its discretion can waive the bond depending on the facts and circumstances of the case.
- Statement - This is a statement of rights that the potential guardian has pertaining to the guardianship that may be placed over him.
- Order - The Guardian ad Litem creates an order for the Judge to sign off on which appoints the guardian ad litem to the potential ward and a statement of the Guardian ad litem’s duties owed to the potential ward to always act in his/her best interests.
Types of Guardianship Under Illinois Law
Several types of guardianship, each with unique characteristics, are recognized under Illinois law. These include:
- Person guardianship
- Estate guardianship
- Permanent guardianship
- Limited guardianship
- Plenary guardianship
Standby and short-term guardianships also provide specific solutions in certain circumstances.
Temporary vs. Permanent Guardianship
In Illinois, a temporary guardian is typically designated for urgent situations and intended for short durations, with temporary guardianship lasting up to one year.
Permanent guardianship, on the other hand, is court-appointed and places the legal guardian in charge of the child until they reach 18 years of age or for adults requiring long-term care.
Limited vs. Plenary Guardianship
For disabled adults with a developmental disability who can make certain personal and financial decisions but not all, a limited guardian legal arrangement is designated.
Plenary guardianship, on the other hand, grants the plenary guardian complete legal authority to make all decisions for the individual under guardianship.
Types of Guardianship Under Illinois Law
Several types of guardianship, each with unique characteristics, are recognized under Illinois law. These include:
- Person guardianship
- Estate guardianship
- Permanent guardianship
- Limited guardianship
- Plenary guardianship
Standby and short-term guardianships also provide specific solutions in certain circumstances.
Temporary vs. Permanent Guardianship
In Illinois, a temporary guardian is typically designated for urgent situations and intended for short durations, with temporary guardianship lasting up to one year.
Permanent guardianship, on the other hand, is court-appointed and places the legal guardian in charge of the child until they reach 18 years of age or for adults requiring long-term care.
Limited vs. Plenary Guardianship
For disabled adults with a developmental disability who can make certain personal and financial decisions but not all, a limited guardian legal arrangement is designated.
Plenary guardianship, on the other hand, grants the plenary guardian complete legal authority to make all decisions for the individual under guardianship.
Recent Changes to Illinois Guardianship Law
Effective January 1, 2023, Illinois Public Act 102-770 (P.A. 102-770) will amend the Illinois Probate Act of 1975 to require training for all guardians appointed over the persons of individuals with disabilities. Guardians appointed over individuals with disabilities will be required to complete this training.
On July 9th, 2021 the Illinois Legislature Amended the Illinois Probate Act of 1975 through Illinois Senate Bill 80 which changes the law pertaining to Guardianship in Illinois. In cases that deal with temporary guardianship, the court in its discretion may award an extension up to 60 days or until a guardian has been appointed either a limited guardian or a temporary guardian. The court in its discretion may now appoint multiple co-guardians to act as the guardian over a person and/or estate if certain requirements are met. And that guardians are entitled to earn reasonable and appropriate compensation for their care over the ward. Further, that compensation that is given to a guardianship is not a first-class claim which is paid from the estate of a deceased ward. You can read the law in its entirety here. The law’s effective date was January 1, 2022.
The Procedure for appointment of a standby guardian over a minor has been changed and amended in the Minors Article of the Illinois Probate Act of 1975 through Illinois HB2825. This bill deleted language that in a Guardianship action that a Guardian ad Litem may be appointed by the court to represent a minor in the proceedings. The new law states the Guardian ad Litem’s duty owed to the potential minor ward, that in any minor guardianship action where a guardian or standby guardian is appointed by the court to represent the minor, the court may appoint a guardian at Litem to act in the best interests of the potential minor ward. The Guardian ad Litem is to submit to the court a written report regarding the Guardian ad Litem’s opinions pertaining to the minor and whether or not guardianship over the minor is appropriate under the circumstances. The Guardian ad Litem may also submit his/or her testimony in open court to determine whether guardianship over the minor is appropriate. You can read the law in its entirety here.
When dealing with a guardianship, it’s important to pay attention to details. Our skilled guardianship attorneys are well-versed in guardianship laws and can help you every step of the way. For questions on your guardianship case, give us a call at (630)-324-6666 or fill out our confidential contact form and a member of our team will get back to you.
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