Guardianship becomes essential when an individual faces challenges in making sound decisions about their personal well-being or financial matters due to mental, physical, or developmental impairments. Illinois has some of the most progressive guardianship laws in the U.S. when it comes to guardianship over children and older or disabled adults.
Prior to 1979, disabled and older adults who were termed “incompetent” by the Probate Court would get a court appointed “conservator” who would care for the individual as well as their finances and estate. The Illinois Probate Act of 1975 was amended in 1979 to ensure that disabled adults receive statutory protection. New forms of guardianship were created and new procedures for appointing guardians and supervising older and disabled adults were also implemented.
Just because a person is elderly, developmentally disabled, or affected by a mental illness, this does not mean they need a legal guardian. The court will conduct a clinical evaluation to determine whether an adult needs a legal guardian as well as the extent of the decision making by the guardian. There are also options for limited guardians which gives adults who need guardianship more power to make decisions for themselves, and temporary guardians that are only needed for a finite period of time.
Determining whether an adult needs legal guardianship and appointing a guardian for them is a legal process that plays out through the courts of Illinois. In this guide, we will discuss the types of guardianships for adults and the responsibilities of each, as well as the process of appointing a guardian in Illinois. It is best to work with a family law attorney that is well versed in guardianship laws to help you through the legal process.
What is Guardianship?
Legal guardianship is when someone is appointed by the court to care for an adult who requires guardianship, who is referred to as a “ward.” The general duties of the legal guardian are to act in the best interests of the ward by taking care of them and making important decisions on their behalf. The courts will determine that an adult needs a legal guardian if they are mentally or physically unable to make important decisions involving personal or financial matters. The goal of an adult guardianship is to protect the ward from poor decisions that could harm them or their family financially.
A guardian is a person appointed by the court to take care of an adult who is physically or mentally incapacitated and cannot manage his or her affairs. These affairs include housing, food, clothing, shelter or medical care. The person appointed by the court is called ‘adult guardian’, who helps the incapacitated adult in managing personal matters.
However, if that adult still wants to retain some control over the affairs, he or she can seek a guardian advocate. Guardian advocate is less involved in the matters, unlike a full guardian.
The court appoints a guardian for the well-being of the person regardless of the needs be it financial or medical ones.
Types of Guardianships in Illinois
Under Illinois law, there are several types of adult guardianships that each have their own characteristics and responsibilities. These guardianships include:
- Person guardianship
- Estate guardianship
- Limited guardianship
- Plenary guardianship
- Temporary guardianship
Person Guardianship
With a person guardianship, the court appoints a “guardian of the person” when the ward can no longer make or communicate decisions involving their personal care. Person guardians make sure that the ward’s personal care needs are met, including dressing, eating, and personal hygiene, and make decisions regarding medical treatment, residential placement, social services, and other needs.
If the needs are continuous and it is in the interest of the adult, the guardian can find a new nursing home or a new house for the adult. This also depends on the adult and guardian, the certain special needs are also included in the service such as special diets, immediate needs, or medications.
Few adults are mentally impaired and thus need constant supervision. The guardian can decide to take the adult in a facility to fulfill the needs. The guardian also manages the estate to make sure it remains in a proper condition to support the adult.
Housing Responsibilities
One of the essential responsibilities of the guardian for an adult is to make sure the adult has a place to live in. Housing can include placing the adult somewhere other than his or her original home, or the place where the adult was living in before.
Estate Guardianship
With an estate guardianship, the court appoints a “guardian of the estate” for individuals who are unable to make or communicate sound decisions for managing their finances or estate. Few guardians take care of financial affairs of the adult. This usually involves, taking care of the estate, property or assets. The guardian is responsible for filing tax, paying bills, and looks after the trust funds. The fund usually come through Social Security, retirement account or maybe other accounts that pay for such expenses.
Limited Guardianship
Under the Illinois Probate Act, the court can be flexible in tailoring the guardianship to the specific needs and abilities of the ward. If the ward is able to make some decisions on their own, the limited guardian is granted power only to make decisions regarding personal care and finances that are specified by the court.
Plenary Guardianship
A plenary guardian is given complete legal authority to make decisions regarding personal care, medical care, residential placement, finances, and the estate. Plenary guardianships are permanent guardianships and the guardian appointed by the court cannot give up the responsibility without approval from a judge.
Plenary guardian is one who has all the legal powers and roles on behalf of the adult when the court decides so. This role extends to every aspect of an adult’s life such as freedom, living or fulfillment of basic needs. When the guardian places the adult in a nursing home, the housing may disappear. The risk factor in this guardianship is if the guardian takes the wrong decision, the estate of the adult may suffer or result in fraudulent real estate transactions.
Temporary Guardianship
Temporary guardianship is used in emergencies in which a disabled person requires immediate protection. The court will appoint a temporary guardian who will serve as guardian between when the petition for guardianship is filed and the court hearing to determine if guardianship is needed concludes. The purpose of temporary guardianship is to ensure that the disabled adult is cared for while the legal process plays out. In most cases, temporary guardianship does not last more than 60 days.
Who Can Become an Adult Guardian?
Anyone who is at least 18 years of age and of sound mind who has not been convicted of a serious crime can serve as a guardian. The guardian must also be a legal resident of the United States and approved by the court. Under Illinois law, public and private not-for-profit agencies can also be court-appointed guardians.
In guardianship cases, the court will determine the need for guardianship and who will be the guardian based on a number of factors. The judge will consider those who petition to be the guardian as well as the preference of the disabled person who needs a guardian. Ultimately, the judge will appoint a guardian who is best suited to care for the ward and act in their best interests, whether the guardian is related to the ward or not.
Complications in Guardianship
The responsibilities of an adult guardian are legally enforceable. When the court issues an order regarding guardianship, the guardian is legally bound in fulfilling the duties imposed by the court. And in case the guardian fails to exercise these duties, he or she is held liable for the injuries and losses caused by such negligence. This can lead to a civil negligence lawsuit.
Recent Updates to Illinois Guardianship Laws
The Illinois Probate Act of 1975 has been amended in the last couple of years to further benefit legal guardians and wards. The following are the amendments made to the Illinois Probate Act for 2022 and 2023:
- As of January 1, 2022, the court can appoint multiple co-guardians to assume guardianship duties for a person and/or their estate. The co-guardians may consist of people or entities that have different responsibilities within the guardianship. The amendment also states that guardians are entitled to reasonable fees and compensation.
- As of January 1, 2023, the Illinois Probate Act was amended to require all court appointed guardians to complete a training program that covers their duties and responsibilities as guardians.
How to Become a Guardian in Illinois
When an adult over the age of 18 needs a guardian, the Illinois probate court must appoint a person or entity to act as their guardian. To start the legal process to become a guardian, the person looking to become a guardian must submit a report signed by a licensed Illinois doctor that determines that the ward needs a guardian due to mental or physical impairments. This report must be done within 3 months of the date of the guardianship filing and contain the following:
- The type of disability affecting the ward and how it impacts their decision making when it comes to personal and financial matters.
- The opinion of the doctor regarding the mental and physical condition of the ward.
- Whether the doctor believes the ward needs guardianship.
- The opinion of the doctor on whether the ward must live in a nursing home or can live at their residence or somewhere else. The report should also include the doctor’s recommendations for a treatment plan for the ward’s disability or impairment.
- The signature of the doctor as well as their credentials license ID number and practice area.
The doctor must perform a thorough examination and provide detailed descriptions of their findings regarding the potential ward’s mental or physical condition and impairment. A highly detailed description helps the court make a better decision.
The guardianship hearing will be scheduled within 30 days of the filing of the petition. The potential ward is also served a summons and copy of the petition. The ward can hire an attorney to represent them through the process, and the court may appoint a guardian ad litem. The guardian ad litem is usually an attorney or a trained caregiver, and their duty is to interview the ward and investigate whether guardianship is needed. They are expected to advocate for the best interests of the ward.
At the hearing, evidence will be presented including the doctor’s report, witness testimony, and testimony from the guardian ad litem in regard to the physical and mental condition of the ward as well as their housing and financial situation. The court will review the evidence presented and if they determine that guardianship is needed, the court will enter an order for the type of guardianship that is deemed appropriate for the situation.
All appointed guardians are expected to maximize the ward’s independence and self-reliance and act in their best interests. Person guardians are typically required to submit annual reports to the court on the status of the ward’s personal care and estate guardians must file asset inventories and accounting of estate receipts and disbursements. If the guardianship needs to be modified or revoked, a petition must be submitted to the court. A judge will decide if the guardianship should be modified or revoked, and they can also appoint a new guardian if the current guardian is unwilling or unable to continue in this role.
Legal Representation from Allen Gabe Law, P.C.
Petitioning for guardianship can be a complex process. If you have a loved one who you think could benefit from legal guardianship, you should first find alternatives and only consider guardianship as a last resort. However, if guardianship is needed and you plan on filing a petition, it helps to work with an experienced attorney to guide you through the process.
Our family law attorneys at Allen Gabe Law, P.C. have experience representing those petitioning to be a guardian as well as potential wards. We can help you navigate the legal process and keep petitioners and wards informed of their rights and options. You can expect our attorneys to always act in the best interests of the potential ward and help secure the type of guardianship that benefits them the most.
You can call Allen Gabe Law, P.C. at (847) 241-5000 to speak to our attorneys.
