WHAT IS A GUARDIAN?
A guardian is a person, institution or agency appointed by the Probate Court to manage the affairs of another, called the ward.
WHO MAY HAVE A GUARDIAN APPOINTED TO MANAGE HIS/HER AFFAIRS?
The law presumes that an adult eighteen years of age or older is capable of handling his/her own affairs. A guardian may be appointed to serve as a substitute decision maker if a person is disabled because of
- mental deterioration,
- physical incapacity,
- mental illness, or
- developmental disability.
The disability must prevent the person from making or communicating responsible decisions about his/her personal affairs. A guardian may also be appointed if, because of "gambling, idleness, debauchery, or excessive use of intoxicants or drugs", a person spends or wastes his/her estate so as to expose himself/herself or his/her family to want or suffering. In either case, guardianship may be necessary to protect the person and to promote the interests of others, such as service providers or creditors.
WHAT ARE THE STEPS IN THE GUARDIANSHIP PROCESS?
In Illinois, the only way someone can be a guardian for a person who is eighteen years old or older is to be appointed by the circuit court. A parent's guardianship over his/her child stops automatically when the child turns eighteen.
The procedures for obtaining a court-appointed guardian are set forth in Section 11a of the Illinois Probate Act, 755 ILCS 5/1-1 et seq. Each county circuit court may also have its own practices or rules. In Cook County, the rules are found in Part 12 of the general rules of practice for the Circuit Court of Cook County. If there are written rules in other courts, they can be obtained from the Probate Court Clerk.
Before starting a court proceeding, one must obtain a report certifying that the person is disabled and needs a guardian. A pre-printed form for the report can usually be obtained from the Probate Clerk of the court where the guardianship proceeding would take place. This is the court in the county where the person with disabilities resides. If the court does not have a pre-printed form, an attorney should be consulted. The report should be completed and signed by a licensed physician and any other professionals who are familiar with the person with disabilities. One or more of the persons who sign the report may be needed later to testify in court. It is important that the report contain all of the information required by paragraph 11a-9 of the Probate Act:
- a description of the nature and type of the respondent's disability, and an assessment of how the disability impacts on the ability of the respondent to make decisions or to function independently;
- an analysis and results of evaluations of the respondents mental and physical condition and, where appropriate, educational condition, adaptive behavior and social skills, which have been preformed within 3 months of the date of the filing of the petition;
- an opinion as to whether guardianship is needed, and the reasons therefore;
- a recommendation as to the most suitable living arrangement and, where appropriate, treatment or habilitation plan for the respondent and the reasons therefore;
- the signatures of all persons who performed the evaluations upon which the report is based, one of whom shall be a licensed physician and a statement of the certification, license, or other credentials that qualify the evaluators who prepared the report.
The more detailed the report, the more likely it will contain all of the information legally required for the court's decision. Since many Illinois physicians are unfamiliar with limited guardianship, it is important for the petitioner or his/her attorney to fully explore the potential for limited guardianship in each case regardless of the initial recommendation of the physician. Total (plenary) guardianship should only be used when the person with disabilities is so incapacitated that he/she truly cannot make any decisions himself/herself. The report should accurately reflect the skills and abilities of the person as well as deficits and problems. It is up to the petitioner to assure that this is done; it may be necessary to have other professionals contribute to the report if the physician is not familiar with all aspects of the person's life, or if the nature of the disability is outside the physician's area of expertise.
Attorney Representation and Other Protections
Although an individual seeking guardianship for another may do so without the use of an attorney, the advice of legal counsel may be beneficial. The involvement of an attorney can be helpful where the alleged person with disabilities objects to guardianship or where complicated personal or financial issues are presented to the court. When a person opts to petition for guardianship without representation by legal counsel, a regional Office of State Guardian attorney or a legal assistance agency may be consulted, in order to learn about specific practices or requirements in a particular court. In addition, the clerk of the court should be consulted to obtain copies of local court forms, and to learn about the scheduling of guardianship cases.
A person facing a guardianship adjudication has the right to a court appointed attorney and a trial by a jury of six persons. An individual facing a guardianship adjudication also has the right to request an independent medical evaluation, which must be paid from the funds of the alleged person with disabilities.
Guardians ad Litem
Most counties in Illinois require the appointment of a guardian ad litem, a private attorney or trained professional charged with independently advising the court concerning the apparent need for guardianship. Although the process described in the Illinois Probate Act anticipates the appointment of guardians ad litem in all cases, many probate courts will waive this requirement for cause.
It is the duty of the guardian ad litem to report to the court concerning the respondent's best interests. Under the law, if the guardian ad litem is not a licensed attorney, he shall be qualified, by training or experience, to work with or advocate for the developmentally disabled, mentally ill, physically disabled, the elderly, or persons disabled because of mental deterioration, depending on the type of disability that is alleged in the petition. The court may allow the guardian ad litem reasonable compensation.
The guardian ad litem must meet with the respondent and tell him about the pending guardianship proceedings, and try to determine the respondent's position with respect to being adjudicated disabled, the proposed guardian, any changes in residential placement, changes in care that may result from the guardianship, and whatever else the court may deem appropriate. The guardian ad litem files a written report and appears and testifies concerning the appropriateness of guardianship. It is good practice for the petitioner of the petitioner's attorney to discuss the guardianship case with the guardian ad litem prior to the court hearing.
Preparation For Court
Once the report is obtained, if guardianship is appropriate, the person who will pursue the guardianship, or his/her attorney, will need to prepare the following documents:
- Petition - the official request to the court for appointment of a guardian.
- Rights Notice - a plain language summary of the respondent's rights as required under Section 5/11a-10 of the Probate Act.
- Summons - the official notice to the person with disabilities of the guardianship proceedings. This gives the court jurisdiction over the respondent (person with disabilities) if it is delivered to the person with disabilities in the correct manner.
- Notice To Interested Parties - an announcement of the date, time and place of the guardianship proceedings, given to all close relatives, the proposed guardian, and the person with whom the person with disabilities resides so that they can appear in court if they wish.
- Order -a proposed order for the court to sign if it decides that guardianship is warranted. Some courts have forms for various types of guardianship; others have one form which is used for all types of guardianship with appropriate spaces filled in or crossed out
- Oath - or Oath of Office, which is the official agreement of the appointed guardian to serve as guardian.
- Bond -a promise to be responsible for financial damage to the estate up to a certain designated limit. The court may require someone to co-sign as a surety. The court may waive bond in non-estate cases.
- Statement - of Right to Discharge Guardian or Modify Guardianship Order. This form (CCP-214) is required in Cook County. Other counties vary as to whether they require such a document. It tells the newly adjudicated ward about his/her rights.
- Order - for GAL is a proposed order for the court to appoint a guardian ad litem (GAL) to protect the interests of the alleged person with disabilities in the guardianship proceedings. If the judge decides to appoint a GAL, the draft order may be used with or without changes.
The petition is filed with the Probate Court Clerk, usually along with the report of the physician. A fee will be charged for the filing of the case. The summons, with a copy of the petition attached, is stamped by the clerk and usually given to the sheriff to deliver to the person with disabilities.
In some counties the clerk of the court gives the papers to the sheriff. In other counties the petitioner (individual requesting guardianship) must do this. The sheriff will charge a fee to deliver the papers. The petitioner must pay the fee unless he/she is indigent and asks the court for permission to file the case as a "poor person."
It is possible to make special arrangements for a court order authorizing someone other than the sheriff to deliver the court papers to the alleged person with disabilities. This may be appropriate if there is some concern that the appearance of a sheriff would upset the individual, or if he/she moves to another county after the case is filed but before the papers are delivered. It can also be done to save the cost of the sheriff's fees.
The notice, with a copy of the petition attached, is sent to each person whose name and address appears in the petition. This includes the proposed guardian, and the person with whom the alleged person with disabilities resides, as well as any current, acting guardian of the alleged disabled person.
The order and oath are either given to the clerk of the court at the time of filing or presented to the judge at the hearing. Practices vary from county to county.
It is a good idea to have at least two extra copies of all papers when filing the case with the court. This is in addition to the extra copies of the petition to be attached to the summons and all of the notices and copies for the petitioner's file. It should also be remembered that the court must receive original documents; others may receive copies.
A hearing date should be set by the court clerk or the judge within 30 days of the filing of the petition. In Cook County the date of the hearing should be as close as possible to 30 days from the filing date to assure that there is time for the sheriff to deliver the summons. If the date assigned is in excess of 30 days, it should be brought to the attention of the judge.
At the guardianship hearing, it may be necessary to have at least one witness to testify in support of the need for guardianship. In Cook County witnesses are rarely called unless the alleged person with disabilities contests the appointment of a guardian, or some other unusual circumstance exists. In other counties the judge may require a witness to prove the case even if there is no contest. The doctor is not required to testify unless the court requires it. The witness could be a nurse, therapist, social worker, nursing home administrator, etc. If it is not clear whether witnesses are required, it is best to be prepared with a witness "just in case."
The alleged person with disabilities is entitled to attend the hearing. If the person wishes to attend, but has difficulty with mobility or transportation, the court and guardian ad litem should be advised.
CAN GUARDIANSHIP BE USED IN THE CASE OF AN EMERGENCY?
Yes, when the court determines that emergency protection is warranted, a temporary guardian may be appointed. If there is an emergency situation requiring a guardian to be appointed before the hearing on the guardianship petition can be completed, one can ask the court to appoint a temporary guardian until the hearing. A petition for temporary guardianship should be prepared, along with a proposed order for the judge to sign. Cook County, and a few other counties, have forms for temporary guardianship, but in general, the documents must be drafted by the petitioner or his/her attorney. The court must designate what, if any, notice shall be given, how, and to whom. The court can then appoint a temporary guardian with very specific powers and duties written into the order. The temporary guardianship expires automatically when a permanent guardian is appointed, the guardianship petition is dismissed, or in 60 days, whichever comes first. A temporary guardianship is appropriate only if there is a substantial need. In determining the necessity for temporary guardianship, the immediate welfare and protection of the alleged disabled person and his estate shall be of paramount concern, and the interests of the petitioner, any care provider, or any other party shall not outweigh the interests of the alleged disabled person.
CAN GUARDIANSHIP BE USED AS A PROTECTIVE MEASURE, ALONG WITH ORDERS OF PROTECTION?
Yes, guardianship is meant to protect the person and property of those who cannot manage for themselves, but it must be used with caution. Guardianship is an extreme form of intervention in the life of a person, because control over personal and/or financial decisions is transferred to someone else for an indefinite, often permanent, period. Once established, it can be extremely difficult to revoke, even if the guardian or the original petitioner believe that guardianship is no longer necessary. If the courts require expert testimony to support the revocation of guardianship, experts may be hesitant to certify that the person does not need guardianship. The right to privacy and independence in determining how to manage one's own affairs is paramount and should be limited or removed only for the gravest cause.
The law requires that guardianship be used only if it will promote the well-being of the person with disabilities and protect the person with disabilities against neglect, exploitation, and abuse, and encourages development of maximum self reliance and independence.
Orders of protection are defined under the Illinois Domestic Violence Act of 1986, and the Probate Act incorporates the provisions of the IDVA by reference. The Probate Act provides that all IDVA procedures for the issuance, enforcement and recording of orders of protection shall also be available in guardianship cases. Consequently, an order of protection may be joined together with a plenary or temporary petition for adjudication of disability, and a court may enter both orders of protection and orders appointing guardians in the same proceeding.
HOW DOES ONE ASSESS THAT A PERSON MAY BE IN NEED OF GUARDIANSHIP?
The fact that a person has a mental disability does not automatically dictate a need for guardianship. The test for determining the need for guardianship focuses on the ability of the person to make decisions and to properly communicate decisions once made. Making incorrect or ill-advised decisions on a periodic basis is not the test. Rather, it is an inability to engage in the decision making in the first place which is important. A practical set of questions that may be addressed are as follows:
- Does the person understand that a particular decision needs to be made?
- Does the person understand the options available in any decision?
- Does the person understand the consequences of each option?
- Is the person able to properly inform appropriate parties once the decision has been made?
The inability to make sound decisions about where to live, where to work, how and when to seek medical care or other professional services, how to properly care for dependents, and how to purchase items like food and clothing is indication that a person may be in need of some guardianship services.
LIVING WILLS, POWERS OF ATTORNEY, SURROGATE DECISION MAKERS, AND OTHER ALTERNATIVES TO GUARDIANSHIP
Guardianship can be the most restrictive alternative available to a person in need of personal or financial assistance. Guardianship always means the involvement of a court, with the likelihood of a public examination of one's private affairs. All possible alternatives should be explored before instituting guardianship proceedings. Competent medical and legal professionals, social workers, caretakers, family and friends should consult and agree on a suitable course of action whenever possible.
The use of representative or protective payee ships, financial counseling and bill paying assistance programs, living trusts, homemaker and other in-home support programs, and other advocacy services may avoid the need for guardianship.
In addition, Illinois law provides additional means of caring for persons in need, with living will declarations, durable powers of attorney, and the use of surrogate decision makers.
The Illinois Living Will Act establishes the fundamental right of persons to control the decisions relating to the rendering of their own medical care. Under this law, persons are authorized to execute declarations, or living wills, instructing physicians to withhold or withdraw death delaying procedures in the event of a terminal condition. After the living will is properly witnessed and signed, the document must be given to the attending physician and entered into the patient's medical record. The document should be honored even after the person is no longer able to participate actively in making health care decisions.
The Health Care Surrogate Act provides an additional means of making health care determinations on behalf of an incapacitated person who requires medical decision making. Under this law, a parent, spouse, child, sibling, relative, or friend of a person who lacks capacity to consent or refuse medical decisions, can act as a substitute decision maker. The surrogate decision maker may act without court appointment, and is legally authorized to make decisions to forgo life sustaining treatment, where a doctor has found a qualifying medical condition to be in place. This process provided for under this law may be invoked where no guardian has been appointed, and no power of attorney or living will has been executed.
Under the Illinois Power of Attorney Act, each person is given the right to appoint an agent to make property or personal and health care decisions. When the person becomes disabled or incapacitated, the agent makes financial and personal decisions for the person, consistent with the terms of the power of attorney. By signing a power of attorney form, the person is able to detail specific things he or she wishes an agent to do or not to do. A person may customize the form to limit or increase the powers available to the agent, so as to reflect personal preferences. The execution of the form requires no court involvement, and forms are readily available. By law, an official statutory form listing personal and financial options, if properly signed and executed, is presumed to be valid.
A more specific type of Power of Attorney exists under the Mental Health Treatment Preference Declaration Act. Like conventional powers of attorney, mental health powers of attorney are intended to give the principal the ability to determine what will and will not happen in the event that the person is in need of mental health services. Unlike conventional powers of attorney, mental health powers may not be revocable.
A private attorney should be consulted to better understand the nuances of powers of attorney and other types of surrogate decision making.
WHO MAY ACT AS A GUARDIAN?
Any person at least 18 years of age who is not of unsound mind, has not been convicted of a serious crime, and is acceptable to the court, may be named guardian of the person or estate of an adult with disabilities. The person must demonstrate to the court an ability to provide an active and suitable program of guardianship.
Any agency, public or private, may serve as guardian of the person or estate, if the court finds that it is capable of providing an active guardianship program. The court shall not appoint as guardian an agency which is providing residential services to the person with disabilities. This is to ensure against any conflict of interest.
A banking institution may be appointed guardian of the estate but not guardian of the person.
WHAT TYPES OF GUARDIANSHIP ARE AVAILABLE UNDER ILLINOIS LAW?
There are several types of guardianship available under the Illinois Probate Act. It is important that all available options be considered to determine the appropriate form of guardianship for a specific person with disabilities. In each case, consideration should be given to requesting either limited or plenary guardianship. Limited guardianship is used when the person with disabilities can make some, but not all, decisions regarding his/her personal care and/or finances.
The basic forms guardianship can take follow:
- Limited Guardianship - used when the person with disabilities can make some, but not all, decisions regarding his/her person and/or estate. "Guardianship shall be ordered only to the extent necessitated by the individual's mental, physical and adaptive limitations." A limited guardian makes only those decisions about personal care and/or finances which the ward cannot make. The powers of a limited guardian must be specifically listed in the court order. The ward retains the power to make all other decisions regarding his/her person or estate. Limited guardianship may be used to appoint a limited guardian of the person, a limited guardian of the estate, or both.
- Plenary Guardianship - used when the "individual's mental, physical and adaptive limitations" necessitate a guardian who has the power to make all important decisions regarding the individual's personal care and finances. Plenary guardianship may be used for the person, the estate, or both.
- Guardianship of the Person - used when a person, "because of his disability, lacks sufficient understanding or capacity to make or communicate responsible decisions regarding the care of his person." The guardian of the person makes decisions regarding the "support, care, comfort, health, education,...maintenance, and...professional services" (such as educational, vocational, habilitation, treatment and medical services) for the person under guardianship who is called a ward.
- Guardianship of the Estate - used when the person "because of his disability...is unable to manage his estate or financial affairs". A guardian of the estate makes decisions about management of the ward's property and finances.
- Temporary Guardianship - used in an emergency situation. Temporary guardianship can last no longer than 60 days and is a means to assure that the person who evidences need for guardianship receives immediate protection.
- Successor Guardianship - used upon the death, disability, or resignation of the initially appointed guardian, when guardianship is still needed.
- Testamentary Guardianship - used by parents of a person with disabilities and designates, by will, a person who assumes the guardianship appointment upon the death of a parent. The designated person must still be appointed by the court before he/she can serve as guardian. The court will consider the designated person but is not bound by the testamentary designation. It can appoint someone else if the proposed guardian is found to be inappropriate.
HOW LONG DOES THE GUARDIANSHIP PROCESS TAKE?
Temporary guardianship can be obtained quickly; it is possible to have a temporary guardian appointed the same day the petition is filed. The length of time required for the guardianship process when an emergency does not exist depends upon the availability of information necessary for preparation of court papers, the availability of a judge, the type of notice required to satisfy the Constitution under the circumstances of the case, and the existence of complicating factors, such as disagreement among interested parties, controversial issues, etc. In routine cases the most time-consuming process is preparing the documents and gathering the information for the presentation of the case. It is important to thoroughly investigate the case before filing it, because it cannot be withdrawn later without the court's permission. One is not permitted to file a frivolous court case and, if the case is filed and later investigation reveals that there is no justification for the case, there can be serious consequences for the petitioner and also for the petitioning attorney.
Once the case is filed, it usually takes from 14 days to two months for a decision to be reached by the court. The fact that a temporary guardian may have been appointed does not determine whether a permanent guardian will be appointed.