This article discusses the Basics of Guardianship for Incapacitated Adults. We will discuss the following topics:
- Court preparation
- Procedures in court
Court Preparation
If the guardianship is valid, the applicant or his or her counsel must prepare the following after receiving the report from the guardian ad litem:
- Petition for Appointment of Guardian: the petition is the formal request to the Court for the appointment of a guardian.
- Notice of Rights: a list of the respondent’s rights in plain language, as required by Section 5/11a-10 of the Probate Act.
- Summons: the document that, if properly served, gives the court authority over the respondent. This is the final notification of the guardianship proceedings to the alleged disabled individual.
- Notice to Interested Parties: a notice sent to the person with a disability’s immediate relatives, the proposed guardian, and the person with whom the person with a disability lives, informing them of the guardianship proceedings’ date, location, and time so that they may attend.
- Order: a form containing a proposed order that the Court will sign if it determines that guardianship is necessary.
- Oath of Office: the designated guardian’s official agreement to act as guardian.
- Bond: a financial guarantee that you will pay for any harm to the estate up to a certain amount. It’s possible that a surety would be needed.
- Statement of Rights: This form is required in Cook County and many other Illinois counties to inform the newly adjudicated ward of his or her rights, including the ability to discharge the guardian or change the guardianship order.
Procedures in Court
A physician’s report is filed with the petition for the appointment of a guardian.
The petition is normally filed with the Probate Court Clerk, along with the physician’s report.
The filing of the case would be subject to a fee. The clerk stamps the warrant, which includes a copy of the petition, and normally gives it to the sheriff to send to the person with disabilities.
In certain counties, the papers are sent to the sheriff by the clerk of the court. In other counties, the petitioner (person seeking guardianship) is responsible for this. The papers will be delivered for a fee by the sheriff.
Special provisions should be made for a court order allowing someone other than the sheriff to give the court papers to the suspected disabled person. If the person is concerned that the arrival of a sheriff may upset him or her, or if he or she moves to another county after the case is filed but before the papers are delivered, this option might be sufficient. It can also be done in order to save money on sheriff’s fees.
Each person whose name and address appear in the petition receives a notice with a copy of the petition attached. This includes the proposed guardian, the person with whom the alleged disabled person lives, and any actual acting guardian of the alleged disabled person.
The order and oath are either filed with the clerk of the court or addressed to the judge during the trial. The practices differ from one county to the next.
When filing the case with the court, it is a good idea to have at least two additional copies of both documents. This is in addition to the additional petition copies that will be added to the summons, as well as other notes and copies for the petitioner’s file. It’s also worth noting that the court requires original documents; some can only obtain copies.
Within 30 days of the petition’s filing, the court clerk or the judge should schedule a hearing. The trial date in Cook County should be as close to 30 days from the filing date as possible to allow time for the sheriff to issue the summons. If the given date is longer than 30 days, it should be brought to the judge’s attention.
At least one witness will be required to testify at the guardianship hearing to support the need for guardianship. Unless the alleged person with disabilities challenges the appointment of a guardian or there is any other exceptional situation, witnesses are rarely called in Cook County. Even if there is no contest in other counties, the judge can require a witness to prove the case. Until the court orders it, the doctor is not required to testify. A nurse, educator, social worker, or nursing home administrator, for example, may be a witness. If it’s unclear if witnesses are needed, it’s best to have one on hand “just in case.”
The alleged disabled person has the right to attend the hearing. The court and guardian ad litem should be notified if the individual wants to attend but has mobility or transportation issues.
Request a consultation with an Illinois Guardianship Attorney. Call our office at (630) 324-6666 or schedule a consultation with one of our experienced probate lawyers today. You can also fill out our confidential contact form and we will get back to you shortly.
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