OSG Case Law 2002

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ILLINOIS GUARDIANSHIP AND ADVOCACY COMMISSION
OFFICE OF STATE GUARDIAN

MIDWEST UNITED STATES
CASE LAW SUMMARY

Prepared by

JOHN H. WANK
DEPUTY DIRECTOR AND GENERAL COUNSEL
ILLINOIS GUARDIANSHIP AND ADVOCACY COMMISSION
DR. MARY L. MILANO,
DIRECTOR

January 2002

Chicago General Office
160 North LaSalle Street
Suite S 500
Chicago, Illinois 60601
(312) 793 5900


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Note: This work was prepared as a guide to guardianship practitioners, and is intended as an informational guide, not as a complete listing of all case law. Before relying on any of the information presented in this summary, users are encouraged to consult with counsel familiar with guardianship law and other legal issues. Although this information is in the public domain, the Commission asks that any references to this Summary contain proper attribution.


Office of State Guardian Case Law Summary

Index

  1. PERSONAL RIGHTS AND DECISION MAKING
    1. Alternative Decision Making Devices
    2. End of Life Decision Making
    3. Other Medical Decision Making
    4. Residential Placement Decisions Made by the Guardian
    5. Visitation Rights – Access to the Ward
    6. Right of Non-Guardian Spouse to Visit Ward
    7. Patient Dumping
    8. Divorce
    9. Marriage
    10. Parental Rights
    11. Abortion/Sterilization
    12. Electroconvulsive Therapy (ECT)
    13. Admission of Ward to Mental Health Facility
    14. Guardian as Necessary Party – Ward’s Petition for Conditional Release From State Institution
    15. Consent to Psychotropic Medication
    16. Right of Ward to Enter into Contracts, Hire Counsel
    17. Driving Privileges

  2. FIDUCIARY ISSUES
    1. Bank Liability / Reliance on Authority of Guardian or Agent
    2. Bank’s Reliance on Purported Agency Agreement
    3. Other Power of Attorney Issues
    4. Management of Real Property
    5. Testamentary Capacity
    6. Guardian/Conservator’s Right to Modify Trust Agreement or Engage In Trust Planning
    7. Charitable and Other Giving to Reduce Estate Taxes
    8. Initiation of Cause of Action on Behalf of Estate; Statutes of Limitations
    9. Guardian Liability – Accountings Held Not to Be Binding on Devisees Who Were Not Provided Notice
    10. Liability of Estate for Ward's Damages to Others/ Duty of Care to Others of An Institutionalized Person with Disability
    11. Insurance Issues
    12. Duty to Protect Assets: Public Aid Spend Down and Burial Trusts
    13. Applications for Public Benefits; Medicaid Trusts
    14. Dependent Child Awards
    15. Use of Totten Trust Funds

     
  3. THE ADJUDICATION PROCESS
    1. Standards of Proof
    2. Notice, Service of Process
    3. Adult Protective Services and Protective Placements With Guardianships
    4. Selection of Guardian: Who May Serve?

  4. GUARDIANSHIP ADMINISTRATION ISSUES
    1. Court/Guardian Relationship, Role of Guardian, Guardian ad Litem, Attorney
    2. Fees for Guardians, Guardians ad Litem, and Attorneys
    3. Penalties for Breach of Fiduciary Duties – Guardian or Attorney Misconduct
    4. Guardian’s Bond
    5. Removal of Guardians
    6. Restoration of Legal Rights

  5. CONFLICTS INVOLVING GUARDIANS
    1. Power of Attorney/Guardian Conflicts
    2. Guardian as Necessary Party – Ward’s Petition for Conditional Release From State Institution
    3. Guardian as Necessary Party – Administrative Hearing Related to Ward Abuse
    4. Guardian’s Right to Notification/ Involvement In P&A Investigation
    5. Confidentiality; P & A’s Right To Access Records