Our world has always been challenging for those who cannot conform to the everyday stresses of life. Parents stand by and watch their children suffer from anxiety or slip into depression. Today, with the COVID-19 pandemic, more and more adults find it difficult to cope.
What can a parent do when an adult cannot manage the routine habits of daily life or are unable to manage their financial affairs?
In Illinois, the Courts are authorized under the Illinois Probate Act to appoint individuals who are called “guardians.” A guardian has the responsibility and capability to assist individuals who cannot make decisions for themselves, whether financially or in their daily lives.
This article will outline what “guardianship” means, who needs a guardian, who may act as a guardian, the types of guardianships, and the duties of a guardian.
What Is Guardianship?
A judge appoints a guardian to manage financial affairs and daily living due to physical or mental limitations. According to Merriam-Webster, a guardian is a protector that guards someone, someone who has the care of the person and property of another. The guardian accepts the responsibility for the person's daily living and sometimes, and often at the same time, that person’s financial affairs.
Who Needs a Guardian?
A person with a disability cannot manage their personal or financial affairs.
Section 11a-2 of the Illinois Probate Act defines a person with a disability (or a disabled person) as a person 18 years of age or older who:
- because of mental deterioration or physical incapacity is not fully able to manage their person or estate
- is a person with mental illness or developmental disability and because of mental illness or disability is not fully able to manage their person or estate
- due to gambling, idleness, debauchery, or excessive use of intoxicants or drugs, so spends or wastes their estate to expose the person with disability or dependents to want or suffering.
Who May Act as a Guardian?
Usually, a friend or family member is the person who observes that another requires a guardian. They watch as their friend or family member fails to maintain good hygiene or fails to clean their home or fails to seek out help from medical professionals or other help.
To Petition the Court to become a guardian, the person needs to be:
- U.S. resident who is of sound mind
- over the age of 18
- someone who has not been convicted of a felony
- someone capable of providing an active and suitable program of guardianship.
What are the Different Types of Guardianships?
The Illinois Probate Act recognizes five forms of guardianship. Limited, Plenary, Temporary, “of the person” and “of the estate.”
These five forms of guardianship are defined as follows:
- Limited guardianship is granted to a person to allow them only to make decisions as specifically outlined in a Court order regarding personal care and personal finances;
- Plenary guardianship is generally giving the guardian full power to make ALL decisions about personal care and finances for a disabled person;
- Temporary guardianship is granted upon the filing of a Petition for Guardianship where a Judge rules that the facts presented warrant a temporary order of guardianship to protect an alleged disabled person until a court hearing can be scheduled; this may also be referred to as an Emergency Petition;
- Guardianship of the person refers to the personal care of the alleged disabled person only;
- Guardianship of the estate refers to the financial assets of the alleged disabled person and grants the guardian the ability to manage the assets and liabilities of the disabled person.
There are instances where all of the above types of guardianship could apply to one matter brought before the court. Often, family members are optimistic that an alleged disabled person will only need temporary help and later discover that a permanent or plenary guardianship is necessary.
What are the Duties of a Guardian?
The guardian is expected to file annual reports with the court that outline the daily routines, health, medical treatments, and financial accounts of the disabled person.
Section 11a-17 of the Probate Act defines explicitly the guardian’s duties as:
- guardian to have custody of the ward (minor child or adult dependent child)
- guardian shall provide for their support, care, comfort, health, education, and obtain and maintain such professional services as are appropriate
- assist the ward in the development of maximum self-reliance and independence
- mandatory filing of annual reports to the court
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