In this article we explain the facts about guardianship in Illinois, including:
- The Illinois Probate Act
- Guardianship of the Person
- Guardianship of the Estate
- The Start of the Guardianship Process
Illinois has one of the most innovative and forward-thinking guardianship laws in the country. Previously, disabled people were labeled “incompetent,” and Probate Court named “conservators” to look after their assets and finances. The Illinois Probate Act was changed in 1979 to provide statutory protection for disabled people. There were entirely new types of guardianship developed. Most notably, new processes for appointing guardians and overseeing disabled people and their estates have been created. When an individual is unable to make and communicate responsible decisions about his personal care or finances due to a mental, physical, or developmental disability, guardianship is required.
A mental, physical, or developmental disorder alone is not enough to warrant the appointment of a guardian. The fact that a person is elderly, mentally ill, developmentally impaired, or physically disabled does not always mean that guardianship is needed. The court determines the degree to which a guardian should make decisions for a ward based on a detailed clinical assessment and report. “Guardianship of the person” and “guardianship of the estate” are the two most common forms of guardianship.
When a disabled person is unable to make or communicate informed decisions about his personal treatment, the court appoints a “guardian of the person.” Medical care, residential placement, social services, and other needs will be decided by this guardian.
When a disabled person is unable to make or express reasonable decisions about his assets or finances, the court appoints a “guardian of the estate.” The guardian will make decisions about the ward’s funds and the safeguarding of the ward’s income or other properties, subject to court oversight.
The Illinois Probate Act allows the court to customize guardianships to suit the needs and abilities of disabled people. The court may appoint a limited guardian, who has the authority to make only certain decisions regarding personal care and/or personal finances that the court determines, depending on the disabled person’s decision-making ability. The court may also nominate a plenary guardian, who has the authority to make all decisions about the disabled person’s personal care and/or finances.
In the event of an emergency, the Probate Act allows for specific remedies to protect suspected incompetent people temporarily. The court may appoint a temporary guardian to serve during the time between the filing of a petition for guardianship and the end of the court hearing where the need for guardianship is determined. Temporary guardianship, which lasts no more than 60 days, is a way of ensuring that a suspected disabled individual is protected right away. It’s only meant to be a temporary fix, and it’s only used when there’s a clear danger or emergency.
If the court considers the person appropriate, any person 18 years of age or older who has not been convicted of a serious crime and is of sound mind will serve as guardian. A legal resident of the United States is required for a guardian. Public and private not-for-profit organizations are both eligible and encouraged to serve as guardians. The legal guardian of a disabled relative is not always a family member. In both cases, the court will decide if guardianship is necessary and who should act as guardian. A family member can petition the court to be appointed guardian, or the disabled person can choose who he wants to be his guardian. If a disabled individual has a preference, the Judge may take the preference into account. The Judge, on the other hand, appoints whoever will be the right guardian and act in the disabled person’s best interests, regardless of the party’s relationship to the disabled.
The Start of The Legal Process
Guardianship is a legal obligation imposed by the judge. A petition must be lodged in court by a “interested party” in order for a guardian to be named. The petition contains basic information about the person seeking guardianship, such as the person’s name, date of birth, and address. A report must be filed that contains a physician’s explanation of the person’s physical and mental ability, as well as any relevant tests, so that the Judge can decide the type of guardianship that is required. Hearings for guardianships are scheduled within 30 days of the filing of a petition with the court. The summons and a copy of the petition must be served on the presumed disabled individual, or Respondent. The Respondent has the right to be represented by an attorney, to have a jury trial, to show testimony, and to cross-examine witnesses.
When necessary, the court will appoint a guardian ad litem, who may be an attorney or a layperson. The guardian ad litem serves as the court’s “eyes and ears,” advocating for the Respondent’s best interests. The guardian ad litem must interview the Respondent, notify him of his rights, and investigate whether guardianship is appropriate before the hearing. The court may appoint an attorney to represent the Respondent if the suspected disabled individual disagrees with the guardian ad litem’s opinions or denies the need for guardianship. Evidence regarding the Respondent’s fitness, mental faculties, finances, accommodation, and lifestyle will be discussed at the trial. The guardian ad litem makes a report to the court about the Respondent’s condition and may prescribe the form of guardianship that is required. The court considers all of the evidence submitted, including the physician’s report, witness testimony, and the guardian ad litem’s testimony.
Finally, the court issues a guardianship order, either restricted or plenary, or determines that no guardianship is necessary. A guardian is assigned to oversee a program aimed at increasing the ward’s self-reliance and freedom. A guardian of the person may also be expected to report to the court on the services rendered to the ward and the state of the ward’s personal treatment on an annual basis. Estate guardians must keep inventories of the ward’s belongings and keep track of the estate’s receipts and disbursements on a regular basis. All estate expenses are subject to court scrutiny, and the guardian can be held liable for inappropriately handled estate properties.
A petition for alteration or revocation of guardianship may be lodged at any time if a change in guardianship appears to be necessary, or if the annual report suggests that guardianship be modified or revoked entirely. The Judge can then terminate the guardianship or change the guardian’s responsibilities based on this information. If a guardian refuses or is unable to fulfill his responsibilities, the court may appoint a successor guardian. Fees for filing, sheriff’s fees for serving the warrant on the Respondent, and attorneys’ fees are normally expected of someone who files a petition for guardianship.
Petitioners are usually represented by lawyers, even if it is not necessary, particularly in contested guardianship cases. The applicant may be required to pay fees to the guardian ad litem or the physician who prepares the medical report in certain cases. If the suspected disabled individual has money, it can be used to pay for the costs and fees. Guardianship can be expensive and time-consuming. Alternatives to guardianship can and should be used in certain situations. Guardianship should be seen as a last resort, a means for removing a person’s legal rights for a good and necessary reason. It should never be used as a form of retaliation or for the convenience of a health care provider or family member.
Request a consultation with an Illinois Guardianship Attorney. Call our office at (630) 324-6666 or schedule a consultation with one of our experienced guardianship lawyers today. You can also fill out our confidential contact form and we will get back to you shortly.
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