In this article we explain the basics of serving as a guardian for an adult with disabilities, including:
- Terminology Used in Guardianship
- Types of Guardianships
- A Guardian of the Person’s Basic Responsibilities
- Limitations on the Guardian of the Person
- A Guardian of the Estate’s Basic Responsibilities
- Limitations on the Guardian of the Estate
- The Termination of the Guardian’s Duties
- Guardians on Standby and for a Limited Time
Serving as a Guardian for an Adult with Disabilities
It’s a big responsibility to be a guardian for a disabled adult who is 18 or older. You have been granted authority over any or all aspects of the person’s existence as a guardian.
You must abide by the law, the guardianship order, and all other applicable court orders relating to your guardianship at all times. When managing the ward’s affairs, you must behave in the best interests of the ward and prevent any conflict of interest or appearance of impropriety. When necessary, you are also required to seek out and depend on competent financial and legal assistance.
Terminology Used in Guardianship
When it comes to guardians and guardianships, certain words have particular meanings:
- A “disabled person” is someone over the age of 18 who is unable to fully manage his or her person or estate due to mental decline, physical incapacity, mental illness, developmental impairment, gambling or drug abuse.
- A “ward” is someone who has been found disabled by the court and for whom you have been named as guardian.
- A “Guardian ad Litem” is an individual appointed by the court to look out for the best interests of the ward, usually an attorney.
- A “guardianship order” is a court order that specifies the powers and responsibilities as the guardian.
- “Letters of Office” are court papers that affirm your appointment as a guardian; keep the originals in a secure location.
Guardianships Come in a Variety of Shapes and Sizes.
The roles and length of various forms of guardianships are different. The type of guardianship that the court has developed for your ward will determine your powers as a guardian.
- “Guardianship of the estate” means that the guardian is in charge of the ward’s financial and legal affairs.
- “Guardianship of the person” refers to the guardian’s responsibility for all aspects of the ward’s personal care, including healthcare and residential placement.
- “Plenary guardianship,” which may refer to a guardianship of the estate, the individual, or both, means that the guardian will have all of the powers and responsibilities that a guardian in Illinois is typically given.
- “Limited guardianship,” which may refer to either a guardianship of the estate or a guardianship of the individual, or both, means that the guardian would have only the limited powers set out in the Court Order appointing the guardian.
- “Temporary guardianship,” which may apply to both estate and person guardianships, or both, means that the guardian may be appointed in an emergency situation, such as the death of an existing guardian or until a permanent guardian can be appointed by the court, where a temporary guardianship is necessary for the ward’s immediate welfare and protection;
- “Successor guardianship,” which may refer to a guardianship of the estate, the individual, or both, means that if the current guardian of a living ward dies, becomes incapacitated, resigns, or is removed, a replacement guardian is named.
- “Testamentary guardianship,” which may refer to both estate and individual guardianships, or both, means that a parent of a disabled person names a guardian in his or her will to be named as guardian upon the parent’s death.
A Guardian of the Person’s Basic Responsibilities
You will have such specific legal responsibilities as the person’s guardian:
- To the extent specified in the guardianship order, you will be responsible for the ward’s personal and medical care, and you may have actual physical custody of the ward, the ward’s minor children, and any adult children who rely on the ward for support and care;
- You will be responsible for the ward’s personal and medical care, and you may have actual physical custody of the ward, the ward’s minor children, and any adult children who rely on the ward for support; and
- You will be required to provide written reports to the court detailing the ward’s current status, living conditions, typical activities, and a list of your interactions with him or her. To find out how often the court needs you to report, speak with the probate judge or an attorney.
Limitations on the Guardian of the Person
Certain actions that the guardian cannot do without court approval are mentioned below. Before you can put the ward in a care facility like a nursing home or agree to a sterilization procedure, you’ll need a special court order. A court may allow the guardian to petition for divorce on behalf of his or her ward if the court determines that it is in the best interests of the ward; it may also authorize the guardian to agree to the ward’s marriage if the court determines that it is in the best interests of the ward. A guardian cannot admit a ward to a mental health facility unless the ward specifically demands it and has the mental capacity to do so.
A Guardian of the Estate’s Basic Responsibilities
As guardian of the ward’s estate, you will be responsible for the ward’s property, finances, and legal affairs. At a bare minimum, you must:
- File an inventory of the ward’s assets and income with the court within 60 days of receiving your Letters of Office;
- Keep the ward’s assets and income completely separate from your own;
- Agree to have the ward’s bills, bank statements, and other relevant mail sent directly to you; however, the ward should continue to receive his or her own personal mail; • open an estate checking account in your name as guardian for the receipt of the ward’s daily income and for you to use for payment of the ward’s bills;
- Contact all sources of the ward’s income, such as the Social Security Administration, Department of Veterans Affairs, and/or any pensions or employers, and request that the ward’s checks be sent to you or the estate checking account;
- Ensure that the ward’s real estate and other assets are securely protected and maintained using the ward’s funds and income;
An accounting must be given to the court one year after your appointment as guardian and every three years thereafter, according to Illinois law. Some courts require the account to be filed annually; you can consult an attorney to find out how often accounts are needed in your area. You can also check to see if a court hearing is required for the account to be approved. If the “guardian ad litem” is still involved in the case in your county, you can give him or her a copy of the accounting.
Limitations on the Guardian of the Estate
There are certain things you can’t do as guardian of the estate unless the court gives you permission. Before doing any of the following, you’ll need to file a petition with the court and potentially inform the “guardian ad litem”:
- mortgage the ward’s real estate or take out any other loans on the ward’s behalf;
- make any gifts from the ward’s estate, even though the ward gives you permission;
- spend any large sums of the ward’s money on unusual or extraordinary expenses, such as the purchase of a new home or automobile; or distribute some money to you.
The Termination of the Guardian’s Duties
Only the court has the authority to terminate or change a guardianship after it has been established. The death of the ward or guardian, the guardian’s resignation, and the restoration of the ward’s rights are all examples of these situations (terminating the adjudication of disability).
The Ward’s Death
Guardianship usually ends when the ward passes away. Upon the ward’s death, the guardian should: • make no further expenses from the ward’s assets; • retain and secure the ward’s assets until the court orders a final distribution; and • promptly inform the court and the guardian ad litem.
A guardian of the estate may also prepare a final accounting and seek approval from the court for a final transfer of the ward’s assets from the guardianship account (s).
Resigning as Guardian
You must file a petition with the court seeking permission to resign as guardian. You may be required to prepare a final accounting of the ward’s estate as part of the petition. The court may also ask you to recommend a successor guardian; however, the court has complete discretion in selecting a successor guardian.
Removal of Guardian
If it is found that you failed to file a necessary inventory or accounting, failed to post the required bond, were adjudicated to be a disabled individual, were convicted of a crime, or did not adequately conduct your duties, the court has the authority to dismiss you as guardian.
You have the right to appear in court and justify your conduct before being removed as a guardian. If you have been convicted of some illegal conduct, you may seek legal advice.
Terminating the Guardianship
If the ward’s ability to handle his or her own affairs deteriorates, the court may alter or terminate the guardianship. The ward maintains the right to request that the guardianship be changed or terminated, regardless of his or her disability. The guardian, the ward, or any other individual acting on the ward’s behalf may file a petition to amend or terminate the guardianship at any time.
You will be required to attend any hearings about the alteration or revocation of the guardianship, as well as take any other steps that the court will order.
Guardians on Standby and for a Limited Time
As guardian, you can appoint a qualified individual as a standby guardian, who will take over as guardian of the ward if you die or are no longer willing or able to properly serve the ward. When an individual who has been designated as a standby guardian learns that you are no longer able to serve as guardian for any purpose, he or she will automatically assume all of your guardianship responsibilities.
Similarly, you can appoint a short-term guardian for your ward in writing to take over your responsibilities if you are unable or unable to do so. The court does not have to approve the appointment of a short-term guardian, unlike a standby guardian. During any 12-month period, a short-term guardian can serve in your place for up to 60 days.
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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