What is guardianship and how do Illinois courts make decisions in guardianship cases? Learn about the basics of guardianship in our article including:
- Statutory Basis of Guardianship
- Guardianship Definitions to Know
- Plenary Guardianship
- Person guardianship (D)
- Principles and Guidelines for Guardianship
- Guardians' Powers and Responsibilities
Statutory Basis of Guardianship
Chapter 11a of the Probate Act of 1975, 755 ILCS 5/1-1 et seq., formerly cited as Ill. Rev. Stat., Ch. 110 2, par. 11a-1 et seq outlines the procedures for petitioning for adult guardianship in Illinois. Unless otherwise mentioned, all references in this guide are to the Probate Act of 1975.
Although the Probate Act provides a structure for guardianship, several aspects of Illinois guardianship law remain vague. Many Illinois probate courts apply various interpretations of legal standards or practices, or none at all. As a result, such practices that might be commonplace in one county may be unheard of in another. As a result, it is important to study local practice rules and become acquainted with local customs.
This guide is intended to assist those interested in the topic of guardianship around the state, and it will cover universal topics. As an example, references to the Cook County protocol are given. In most Illinois probate courts, a private counsel or an attorney from the Office of State Guardian (OSG) should be able to clarify local practice considerations.
Guardianship Definitions to Know
Disabled Person
A person with a disability (or "disabled person") is described in Section 11a-2 as a person 18 years or older who is not fully able to manage his or her person or estate due to mental deterioration or physical incapacity, or 2) is a person with mental illness or developmental disability who is not fully able to manage his or her person or estate due to mental illness or developmental disability.
Before 1979, disabled people were legally referred to as "incompetents," and guardianship for disabled adults was referred to as conservatorship. There were also other obsolete words used. The terminology in use at a given time can be reflected in case law references. The current regulatory terminology will be included in this guide for clarity's sake.
Disability adjudication
Both the guardianship process and the end result are defined by this term. A guardian has been appointed for anyone who has been legally adjudicated disabled. Adjudication of disability is the legal term for the process of obtaining guardianship. The probate court has discretion in making guardianship appointments, but it must take into account the wishes of the presumed disabled individual. Parts 11a and 12 (d).
Plenary Guardianship
Plenary guardianship is the third form of guardianship.
A plenary, or complete, adjudication of disability as to an individual, an estate, or both is the most common type of guardianship. People who are found to be completely unable to make or communicate personal decisions or control their finances are assigned a plenary individual or estate guardian. Sections 11a-17 and 18 detail the responsibilities of individual and estate guardians, respectively.
Person guardianship (D)
Medical decision-making and residential placement are two major factors in assessing the need for individual guardianship. Person guardianship should be considered if a person is unable to give informed medical consent or make reasonable decisions about living independently in a home.
Estate guardianship
When an individual is unable to handle their finances due to a disability, estate guardianship is required. When estate assets are small, however, courts are hesitant to name plenary estate guardians. Representative payeeships may be used to manage pensions, government insurance, and other related entitlements. Programs that help with bill paying and money management should also be considered. Without resorting to estate administration, small estate amounts may be obtained and disbursed. As an alternative to estate guardianship, some courts allow the use of small estate affidavits under Section 25-2 and court-supervised deposits of wards' funds under Section 24-21. Many downstate judges, on the other hand, are not hesitant to name estate guardians in small or minor estates.
Guardianship with a limited scope
When an individual lacks some, but not all, of the capacity to make personal decisions or manage an estate, guardianship is the least understood and least used option. The appointment of a limited guardian is not a finding of legal incompetence under Section 11a-14(c). Limited guardianship is meant to be more individualized and less invasive than plenary guardianship. Even though guardianship is only meant to be used to the extent that a person's actual mental, physical, and adaptive disabilities necessitate it (section 11a-3(b)), courts often establish plenary guardianship rather than limited guardianship, even when limited guardianship would be more appropriate.
One explanation for the preference for plenary guardianship is that establishing an effectively restricted guardianship is more difficult than establishing plenary guardianship. A physician must make a clear distinction between what a person can and cannot do, as well as explain these differences to the court. The court must then decide which of these rights will be stripped away from the disabled person, taking into account the practical implications of each. The guardian, ward, and third parties who can depend on the order must all recognize the limited guardianship. Not all guardianship professionals, medical practitioners, or judges are capable of drafting a useful restricted guardianship order.
Parties involved: petitioner, respondent, and others
Certain parties are still interested in any disability adjudication. The respondent is often referred to as the alleged disabled person. 11a-10 section (e). A named petitioner is typically a person or an individual acting in an approved or official capacity who presents facts and circumstances that would cause a probate court to conclude that a named respondent needs guardianship in some way. A named petitioner may be "Joe Smith, a social worker at St. Joan of Arc Health Care Center."
Under Section 30 of the Guardianship and Advocacy Act, ILCS 3955/30, the Office of State Guardian is expressly allowed to petition for its own appointment as guardian, but it is not necessary to do so.
A guardian ad litem is often involved. In Section V, D, the position of the guardian ad litem is addressed in greater depth. Parents, partners, children, and other family members who are legally entitled to notice of the guardianship proceedings are examples of other parties. Finally, the potential guardian would be a part of the process.
Wills and Testaments
Probate as an adjective that refers to something related to probate law or the probate court. Probate is a noun that refers to proving the validity of a document, normally a will, before a judge and distributing property within the court's jurisdiction. Probate courts in Illinois have traditionally had authority over will probating, estate administration, and cases involving juveniles and people with disabilities.
Principles and Guidelines for Guardianship
Section 11a-3(b): guardianship should be used sparingly and alternatives to guardianship should be considered.
Guardianship can only be used where it is appropriate to support the well-being of a disabled individual, to protect them from neglect, misuse, or violence, and to enable full self-reliance and independence. Guardianship will only be granted to the degree that the individual's actual mental, physical, and adaptive disabilities require it. 11a-3 Section (b). There are several statutory alternatives to guardianship. A personal guardian may not be required if a person with a disability has executed a proper Living Will or Power of Attorney for Health Care, or if a surrogate decision-maker under the Health Care Surrogate Act can be identified. Estate guardianship can also be unnecessary if an appropriate trust or representative payeeship is in place.
Guardianship should not be thought of in isolation. Alternatives must be considered. Even if a person meets the clinical or legal definition of disability, he or she may not benefit from having a guardian, making guardianship unnecessary. Before filing for guardianship or accepting a guardianship case, it's important to understand how guardianship can help an alleged disabled individual. If there are no compelling grounds for guardianship, other options must be considered. According to the Guardianship and Advocacy Act, 20 ILCS 3955/33, the State Guardian can provide guidance and advice to avoid the need for the appointment of a guardian. Courts often examine the relationships between the respondent, the petitioner, and the proposed guardian, if different from the petitioner, for apparent signs of conflicts of interest.
Section 11a-5(a): successful and appropriate guardianship program
Serving as a guardian has very few criteria. A guardian can be any U.S. citizen who is of sound mind, has not been adjudicated incompetent, is over the age of 18, and has not been convicted of a felony.
A party must also be capable of having an active and appropriate guardianship program for the individual with a disability, in addition to the foregoing. Although the Probate Act does not specify active and appropriate guardianship services, courts typically search for at least a basic plan of guardianship before naming a prospective guardian.
The Office of State Guardian is the guardian of last resort, according to Section 31 of the Illinois Guardianship and Advocacy Commission Act.
The Guardianship and Advocacy Act, 20 ILCS 3955/31, states that if another eligible individual is available and willing to accept the guardianship appointment, the Office of State Guardian will not be named. In all cases where a court appoints the State Guardian, the court must state in the order that no other appropriate and willing individual could be found to accept the guardianship appointment as a finding of fact. When the Office of State Guardian petitions for its own appointment as guardian, this provision is waived.
Petitioners must exercise extreme caution to ensure that any potential guardianship candidate is considered and that a public guardian is not named solely for the benefit of the court or the petitioner. Where an appropriate and willing substitute is available, lawyers for the Office of State Guardian may challenge or attempt to vacate guardianship orders naming OSG as guardian.
Residential placement requirements under Section 11a-14.1 of the Probate Act
More specific placement requirements were adopted in August 1997. The new rules established requirements for determining adult ward residential placements, including a provision that guardians respect a ward's wishes unless the ward or the ward's estate is harmed. When the ward's wishes cannot be determined or will cause significant harm to the ward or his or her estate, the guardian takes decisions that are in the best interests of the ward.
Guardians are forbidden from withdrawing the ward from his or her home or separating the ward from his or her family and friends unless it is appropriate to protect the ward or the ward's estate from serious damage. Guardians have a responsibility to look at fair housing options. Placements will be monitored regularly to ensure that they remain acceptable and that alternatives are pursued as required.
Guardians' Powers and Responsibilities
Guardians of persons
Section VIII, below, contains a list of some of the practical issues that guardians of the individual often discuss. The following is a summary of the duties of a personal guardian, as defined in Section 11a-17:
Personal guardianship duties are outlined in Section 11a-17. (a) The guardian of the individual shall have custody of the ward and the ward's minor and adult dependent children to the decree ordered by the court and under the court's direction; shall procure for them and make provision for their welfare, treatment, comfort, health, education, and maintenance, as well as such professional services as are necessary. The guardian is responsible for assisting the ward in achieving full self-reliance and independence. The person's guardian may petition the court for an order ordering the estate's guardian to pay a set sum regularly for the provision of the services specified in the court order.
Both guardians are required to file annual reports. When a private guardian requests it, OSG will assist them in filing reports under Section 11a-17(b). An individual guardian is required to file periodic reports covering the following topics when ordered to do so by a probate court under Section 11a-17(b):
- the ward's current mental, physical, and social condition, as well as the mental, physical, and social conditions of the ward's minor and adult dependent children; (2) their current living arrangement, including a description and address of every residence where they lived during the reporting period, as well as the length of stay at each location; (3) a summary of the medical, educational, vocational, and other professional services provided to them; and (4) a summary of the medical, educational, vocational, and other professional services provided to them.
Estate guardianship
Section VIII, below, contains a list of some of the practical issues that estate guardians often deal with. The following are the responsibilities of an estate guardian, as defined in Section 11a-18:
- The guardian of the estate shall have care, management, and investment of the estate to the extent specified in the order establishing the guardianship, shall manage the estate frugally, and shall apply the income and principal of the estate so far as necessary for the comfort and suitable support and education of the ward, his minor and adult dependent children, and persons related by blood or marriage. The guardian may distribute his ward's funds and estate directly to the ward or their distributee, or in any other manner and in any sum that the court orders.
- Upon the guidance of the court that issued his letters, a guardian may carry out his ward's contracts that were legally binding at the time of the ward's disability. The guardian may be authorized by the court to sign and deliver any bill of sale, deed, or another document.
- Unless another person is named for that purpose, the guardian of a ward's estate must appear for and represent the ward in all legal proceedings.
Guardians ad litem
On a showing of necessity, a court can make a temporary guardianship appointment before the appointment of a plenary or limited guardian or pending an appeal concerning such an appointment. The health and security of the disabled person or the disabled person's estate are meant to be related to temporary guardianship. The immediate health and wellbeing of the alleged disabled person and his estate shall be of paramount concern in deciding the need for temporary guardianship, and the interests of the applicant, any care provider, or any other party shall not exceed the interests of the alleged disabled person. The real harm found by the court that necessitates temporary guardianship must be stated in the court order establishing temporary guardianship.
Temporary guardianship petitions must be filed concurrently with a plenary or limited guardianship petition in Cook County courts. However, some downstate courts regularly offer temporary relief on guardianship requests, with guardianship petitioners taking no further action.
A temporary guardian has all of the powers and duties of a guardian of the individual or estate that are expressly delineated by court order under Section 11a-4. As a result, orders appointing a temporary guardian must specify the court's particular power or obligation. Temporary guardianships must be terminated within 60 days of the court appointment or when a plenary or restricted guardian is chosen, whichever comes first. Temporary guardianships cannot be extended for more than 60 days, according to the Probate Act.
Temporary guardianship requests are typically viewed as emergency procedures used before a complete disability adjudication. Probate courts have more procedural discretion in temporary guardianship cases when it comes to notice and other procedural protections.
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