Author: David Wolowitz & Michael O'Connor, Prairie State Legal Services; Reviewed by Peter Ashmore, Chicago Volunteer Legal Services
Last updated: July 2013
What Is It? A state law that provides for the appointment of permanent, standby, or short-term guardianships for adults with disabilities.
What Is Its Purpose? To assure the appointment of a guardian to act in the best interest of a "disabled person" who is not able to safely or responsibly handle personal and/or financial affairs. To establish the authority and duty of guardians.
Who Can Benefit? If the guardianship is appropriate and the right person is available to act as guardian, then a guardianship can benefit an adult person with a disability.
Purpose of a Guardianship for an Adult with Disabilities
If you are not able to safely or responsibly handle your personal and/or financial affairs, a court may appoint a "guardian." The guardian will have the legal authority to make decisions and take actions necessary to care for and protect you. A court ordered guardianship will cause you to lose your right to make independent decisions concerning some or all of your affairs, depending on the terms of the court order.
The judge will appoint a guardian only if he or she determines that you are a "disabled person."
The term "disabled person" means a person 18 years or older who, because of mental deterioration or mental illness, or physical incapacity or developmental disability, is unable to fully handle his or her own affairs in a safe manner and is therefore in need of a guardian
The term "guardian" means the person appointed by a judge to make decisions on behalf of the disabled person.
The Authority of the Guardian
If the court finds that an adult is a "disabled person" under the Probate Act, the court may appoint a "guardian of the person" or a "guardian of the estate." Often, the court appoints same person as both guardian of the estate and guardian of the person. They also can be different persons.
Guardianship of the Person: This refers to the authority of the guardian to make decisions concerning the personal and physical care of the "disabled person," including health care decisions and living arrangements.
Guardianship of the Estate: This refers to the authority of the guardian to handle the money, property, bills, and other financial affairs of the "disabled person."
If the judge decides that you still have the ability to handle your affairs in some ways, the judge may give the guardian the authority to handle only those matters that you cannot safely handle. This is referred to as a "limited guardianship."
On the other hand, if the judge determines that you are completely unable to handle your affairs, then the judge may give the guardian the authority to handle all of your affairs. This is referred to as a "plenary guardianship."
If the ward has previously authorized a valid Power of Attorney, neither the personal guardian nor the estate guardian has authority with respect to any personal or health care matters or property covered by the Power of Attorney (unless the court says otherwise). Please refer to Chapter 8, Section 3, " Advance Directives: Powers of Attorney and Living Wills" for more information about Powers of Attorney.
Duties of the Guardian
The guardian is required to protect your best interests. This includes the duty to take whatever action is necessary to provide for your support, housing, education, and health. The guardian is required to take steps to help you achieve the maximum degree of self-reliance and independence.
The guardian of the person may be required to file with the court a report explaining what sort of medical care has been given, explaining what sort of vocational, educational, and rehabilitation services have been provided to you as an adult with a disability, and whether a guardianship is still necessary.
When making decisions on your behalf, a guardian of the person is required to try to do what he or she believes you would want done under the circumstances. The guardian should take into consideration your personal, religious and moral beliefs, and any preferences or opinions you have expressed.
A guardian of the estate is required to handle your income and assets. The money available should be first used to provide for your support and care.
If there are more income and assets than are needed to pay for these day-to-day needs, the guardian of the estate is required to have the excess money invested in a bank account, stocks, bonds, or in some other responsible manner. There are very specific rules concerning how a guardian may invest money, and the guardian may be held personally liable for the interest income which is lost due to the failure to responsibly invest funds.
The law states that the guardian of the estate is required to file a report with the court explaining how your money and finances have been handled. However, in some parts of the state this is not always strictly enforced.
Who Serves as the Guardian
Often a family member or friend will be the guardian. If no one is willing to be the guardian, the judge may appoint a County Public Guardian, or the Office of State Guardian.
The guardian must be a U.S. resident at least 18 years old, who has not been convicted of a felony involving harm or threat of a minor, elderly, or disabled person, and who is capable of the above listed duties. A public agency or not-for-profit corporation can be appointed the guardian. However, an agency which is directly providing residential services cannot be guardian.
Procedure for Appointment of a Guardian
A Petition for Guardianship is filed in Court. The petition may be filed by the proposed guardian or by some other person with a concern for your affairs or who is related to you. This is usually done in the county where you live. A doctor's statement about why a guardianship is necessary also should be filed at this time.
The person filing the petition must send a notice of the time and place of the hearing to you and to your relatives. The purpose of the hearing is for the judge to decide whether you are a "disabled person" unable to safely handle your own affairs. If the judge makes a finding of disability, the judge will appoint a guardian of the person, the estate, or both. The judge will decide whether the guardian will have plenary power, or will be authorized to handle only a limited range of matters.
Guardian Ad Litem
Before making a decision whether to enter a guardianship order, the judge may appoint a guardian ad litem (GAL). A GAL is someone who the judge appoints to investigate the facts of the case. The GAL does not represent you. It is his or her job to decide what would be in your best interests. The GAL may interview you and your family and friends and others who are familiar with you. The GAL then makes a report to the judge, including opinions about whether a guardianship is needed, who should be the guardian, where you should live, and what sort of services you need. The judge will consider the GAL's opinion in making the final decision.
Rights of the Disabled Person
When a petition for the appointment of a guardian is filed, you have the right to appear in court and fight the case. You should do this if you feel that you are not in need of a guardian, or you want someone else to be the guardian. You are entitled to a lawyer, and you are entitled to a court appointed lawyer if you are poor. You have the right to a jury trial, to present witnesses, and to have your own doctor testify. If you request, the judge must appoint an independent expert to examine you and report whether he or she believes that you are in need of a guardian.
Ending the Guardianship
You, or someone acting on your behalf, may ask the judge to end the guardianship at any time. This can be done by filing a petition in court. If you are unable to file the petition, you can instead send a letter to the judge, call, or go in person. Upon receiving your request, the judge may schedule a court hearing or appoint a GAL to investigate your request.
In order to end the guardianship, it is necessary to present clear and convincing evidence that you are now able to safely care for yourself and manage your affairs.
Changing the Guardian
You, or someone acting on your behalf, can ask the judge to appoint a new guardian. This may be done if you believe that the guardian is unable to properly handle his or her duties or is mishandling your affairs. Here again, the judge may appoint a GAL to investigate whether a new guardian should be named.
What is a Stand-By Guardianship?
A Standby Guardianship is a procedure by which your guardian can name the person who he or she wants to become the guardian in the event that the first guardian dies or becomes unable to perform his or her duties. By using this procedure, the standby guardian will be able to assume guardianship of you immediately upon the death or incapacity of the previous guardian.
Designation of the Standby Guardian
The document naming the person who is to be the standby guardian must be witnessed by at least two persons over the age of 18. Neither of the witnesses can be the person nominated to be the standby guardian. The statute contains a form for appointing a standby guardian, but other forms can be used as well.
Appointment of the Standby Guardian
The next step is to file in court a Petition for the Appointment of a Standby Guardian. The petition must identify who proposes to become the Standby Guardian. The petition also must identify you and any living spouse, parents or adult siblings or other close relatives, state your financial circumstances, your preferences as to the choice of standby guardian, and the reasons why a standby guardianship is needed. A copy of the document nominating the standby guardian should be attached to the petition.
At the court hearing, the judge decides whether a standby guardianship is in your best interests. The judge may appoint a GAL to represent you, as a person with a disability, in the court proceeding.
Duties of the Standby Guardian
The standby guardian appointed by the judge does not have any authority to act as your guardian until:
Immediately upon learning of the death or incapacity of the previous legal guardian, the standby guardian must immediately assume all of the duties of legal guardian, in accordance with the court order appointing the standby guardian.
The authority of the standby guardian to act as the legal guardian will last for 60 days. Within 60 days of learning of the death or incapacity of the previous legal guardian, the standby guardian must file a petition in court seeking the appointment of a permanent guardian.
What is a Short-Term Guardianship?
A Short Term Guardianship is a way for your legal guardian to appoint someone to take over the guardian's duties during brief periods of time when the legal guardian is unavailable or unable to perform those duties.
Example: Short term guardianship may be used if the legal guardian is undergoing medical care and will be unable to perform the duties of guardian during a period of recuperation.
The Short Term Guardianship Appointment Form
No court proceedings are necessary to put a short term guardianship into effect. All that is required is an appointment form. A short term guardianship must be in writing, and be witnessed by at least two persons over the age of 18. Neither of the witnesses can be the person designated to be the short term guardian.
The statute contains a form for appointing a short term guardian, but other forms can be used as well. The person appointed as the short term guardian must sign the form.
The short term guardianship can go into effect as soon as it is signed, or it can go into effect at a future date or upon a specified event (such as the legal guardian's admission into a hospital). The form can specify that it will terminate upon a specific date or event.
The Authority of the Short Term Guardian
The short-term guardian has the authority to act as legal guardian for no more than a cumulative total of 60 days in any 12 month period. The short term guardianship can be terminated at any time by the legal guardian.
Rights of the Disabled Person
When appointing a short term guardian, the legal guardian is required to consult with you concerning your preference about who should be the short term guardian. The guardian should take this preference into consideration when selecting a short term guardian.
Each time that the legal guardian appoints a short term guardian, the legal guardian must inform you of the following things:
Any interested person, including you, may file a petition in court seeking to limit or end the authority of a standby or short term guardian. The judge may appoint a GAL to represent you in the court proceedings concerning this petition.
The Office of State Guardian
This office can provide legal advice and referrals to people with disabilities concerning guardianship issues. In addition, the office can serve as guardian if no one else is available.
Illinois Office of State Guardian website
The statute concerning guardianships for adults with disabilities, in general, can be found at 755 ILCS 5/11a. The statute concerning standby guardianships for adults can be found under Section 3.1 of 755 ILCS 5/11a. The statute for short term guardianships for adults can be found under Section 3.2 of 755 ILCS 5/11a.
Printed from: www.illinoislegaladvocate.org/index.cfm?fuseaction=home.dsp_Content&contentID=245
We welcome your comments and suggestions