This article is meant to explain the role of a guardian ad litem in an Illinois adult guardianship case. For some foundational knowledge about adult guardianship cases, check out our previous articles: Adult Guardianship in Illinois Explained and How to File a Petition for Adult Guardianship in Illinois.
What is a Guardian ad Litem?
A guardian ad litem is a person appointed by the court in an adult guardianship case for the purpose of representing the best interest of the allegedly disabled adult, also known as the “respondent.”
How is a Guardian ad Litem Appointed?
Section 11a-10(a) of the Illinois Probate Act sets forth the rules for appointment of guardian ad litems in adult guardianship cases. After a petition for guardianship of a disabled adult is filed, the court is required by the Probate Act to appoint a guardian ad litem unless the court determines that a guardian ad litem is not necessary to protect the respondent or inform the court. This gives the court discretion to waive the requirement of appointing a guardian ad litem if the case is clear cut and non-contentious.
Who can be a Guardian ad Litem?
According to the Probate Act, the guardian ad litem must either be a licensed attorney or be specifically qualified to work with and advocate for individuals with the type of disability that is the subject of the case. In practice, however, the guardian ad litem will almost always be a licensed attorney.
What does a Guardian ad Litem do in an adult guardianship proceeding?
Once the guardian ad litem is appointed by the court, he or she will perform several tasks, including:
- Meeting with the disabled adult to observe his or her condition;
- Informing the disabled adult of what is being sought in the petition and of his or her rights with respect to the petition;
- Determining how the disabled adult feels about what is being sought in the petition and what his or her wishes are;
- Reviewing any medical or mental health records of the disabled adult that the guardian ad litem deems necessary;
- Interviewing the family members of the disabled adult;
- Interviewing the proposed guardian to ensure that the person would be an appropriate guardian and is not simply seeking to personally gain from the estate of the respondent; and
- If necessary, consulting with other professionals with experience in the respondent’s disability.
What is included in a Guardian ad Litem’s report?
After the guardian ad litem has completed his or her fact-gathering process, he or she will file a written report with the court, detailing:
- The guardian ad litem’s observations of the disabled adult;
- The disabled adult’s feelings and desires with respect to the petition;
- The guardian ad litem’s opinion as to whether the proposed guardianship is appropriate; and
- Any other issue that the guardian ad litem finds to be relevant.
The report must be filed on or before the date of the hearing to determine guardianship. The guardian ad litem will appear at the hearing to testify regarding his or her findings.
What Happens if the Guardian ad Litem Disagrees with the Wishes of the Disabled Adult?
Sometimes the wishes of the disabled adult will differ from the guardian ad litem’s opinion as to what would be in the disabled adult’s best interests. It is important to note that the guardian ad litem’s job is to represent the best interests of the disabled adult, not the wishes of the disabled adult. When the guardian ad litem’s opinion regarding best interests of the disabled adult diverge from his or her wishes, the court must appoint an additional attorney to represent the disabled adult in pursuing his or her wishes. The court must also appoint separate counsel if the disabled adult requests such appointment.
Who is Responsible for Paying for the Fees of a Guardian ad Litem?
The guardian ad litem will typically be paid by the disabled adult’s estate. However, in cases where the disabled adult’s estate cannot afford to pay the guardian ad litem’s fees, the court may order the petitioner to pay these fees.
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