DISABLED PERSON GUARDIANSHIP GENERAL PROCEDURE
Who May be a Guardian?
In Illinois any reputable adult with as little relationship to another person as being a neighbor or friend may petition for a guardianship for an adult person who is in some way disabled or unable to manage his or her own affairs or is being abused, neglected or exploited. Such person must be a resident of Illinois over 18 years of age, of sound mind, who has not been adjudged a disabled person under the Probate Act, who has not been convicted of a felony, and the court finds is capable of providing an active and suitable program of guardianship is eligible to be appointed guardian of another person. Any public agency or not-for-profit corporation found capable of providing such a program, except one which is directly providing residential services to the disabled person, may also be appointed guardian of the person or estate. Any corporation qualified to accept and execute trusts in Illinois may be appointed guardian of the estate.
Adult When is a Guardianship needed for a Disabled?
If a person over 18 years of age is disabled. That is, lacks sufficient understanding or capacity to manage his or her own affairs due to diminished mental ability (i.e. mental illness or developmental disability) or physical incapacity or is being abused, neglected or exploited or because of gambling, idleness, debauchery or excessive use of intoxicants or drugs, so spends or wastes his or her estate so as to expose himself or herself or his or her family to want or suffering, then a guardianship may be needed and can be established.
Are there different kinds of Guardianship?
There are provisions for the appointment of “temporary guardians”, who are appointed in the event of an appeal of a guardianship order. A “standby guardian” is one designated by a court appointed guardian in either a writing or a will to take their place if they are unable to act. A “short term guardian” is one is one designated by a court appointed guardian in writing, without court order, to take over for a limited time when the appointed guardian is for some reason unable to act. Statutory forms for the appointment of standby and short term guardian are provided in the Illinois statutes in Sections 5/11a-3.1 and 5/11a-3.2 A “successor guardian” is one appointed by the court to take over upon the death, incapacity, resignation of removal of a guardian. A “testamentary guardian” is one who is designated in the will of a parent of a disabled person. A “designated guardian” is one that was designated by a person while they are competent to act as their guardian in the event of their own disability. A designated guardian can be designated in a will or other writing and if the writing is executed and attested in the same manner as a will it is given prima facie validity. Otherwise it has to be proved by competent evidence. However, the appointment, irrespective any designation, is still in the sound discretion of the court.
What are Limited, Plenary and ad Litem Guardianships?
Guardianship for an adult is a drastic measure in that it takes away or suspends a person’s constitutional rights. Therefore, judges insist that all procedures be followed to the letter in adult guardianships. Where a guardianship is necessary it can be obtained over both the person and estate or only over the person or only over the estate of an individual who is unable to manage his or her own personal or financial affairs. Any of these guardianships can be “limited” or “plenary”. A limited guardianship is limited in time or in the powers granted to the guardian, while a plenary guardianship is broad in scope. A plenary guardian can generally do everything that a person could do for themselves were they capable. A “Guardian ad litem” is one who is appointed by the court for the limited purpose of investigating the facts concerning the question of whether a guardian should be appointed at all. A lawyer or person qualified by experience or training to work with or advocate for the developmentally disabled, mentally ill, or physically disabled, the elderly, or persons disabled because of a mental condition is appointed, where necessary, by the court to act as a Guardian ad litem for an allegedly disabled adult. The guardian ad litem will consult with the allegedly disabled person, his family and those attending the his or her needs and inquire into any and all matters which may concern the well being of that allegedly disabled person.
Beginning a Disabled Adult Guardianship
To begin to obtain guardianship over an adult disabled person one should prepare the forms mentioned above. File the petition, physician’s report, summons and order appointing guardian ad litem, along with the applicable filing fee with the Court Clerk and obtain a court hearing date. The hearing date must be within 30 days of the date of filing the petition. The summons must be served upon the allegedly disabled person at least 14 days before the hearing date and notice of the hearing must be served on the nearest adult relatives of the allegedly disabled person, who also should be listed in the Petition. The oath, bond (in the amount of one and one-half the value of personal property if a surety company acts a surety or two times the value of the personal estate if an individual or individuals act a surety or if bond was waived), copy of the notice served on the adult relatives, order adjudicating disability and appointing the limited or plenary guardian should be presented to the court at the time of the hearing, with copies of all the forms for the guardian ad litem upon that person’s appointment.
On the first hearing date the court will appoint a guardian ad litem and set the matter for the second hearing. The respondent (i.e. the allegedly disabled person) has the right to counsel, either personally obtained or court appointed, and the right to a jury of 6 persons, if he or she so elects. Also, he or she has the right to present evidence, confront and cross examine witnesses, have a closed to the public hearing, to be present at the hearing, and to be examined by one or more independent experts.
If the hearing is uncontested the physician who prepared the report need not appear, unless the court specifically by order requires it.
Letters of office will be received in the mail within a few days of the order of adjudication and appointment having been entered.
Within 60 days of appointment (i.e. issuance of letters of office) the guardian of the estate must file with the court a verified inventory of the assets of the estate that have come to her or her knowledge.
Within 30 days following the one year anniversary date of appointment the guardian of the estate must file with the court a first current account of all receipts and disbursement made on behalf of the estate. On each subsequent anniversary date a current account is due. With each current account the guardian of the person should file a report on the condition of the disabled person.
A Guardianship for a minor is begun the same way as one for a disabled adult – by filing a petition for the appointment of a Guardian for the minor. The court, on its own motion may also appoint a Guardian for a minor.
A minor is a person who is less than 18 years of age. The appropriate place to establish a guardianship for a minor is in the court of the county where the minor resides or if the minor does not reside in Illiniois, then the appropriate place is in the county where the minor owns real or personal property.
The same qualifications apply to a minor’s guardian as to an adult guardian.
When does a minor need a guardian of the person?
When a minor does not have living parents or does not have a parent who can be found or when a parent is unable or unwilling to care for that minor.
When does a minor need a guardian of his or her estate?
When the minor is about to or has received property or money in the amount of more than $5,000.00, such as an insurance or personal injury settlement or by inheritance. The mere entitlement or receipt of social security benefits does not require a guardianship of the estate of a minor.
The procedure for establishing a minor guardianship essentially follows that above procedure for establishing an adult guardianship. An excellent article about minor guardianships can be found on the Lake County Web site. The address of this site is: http://www.19thcircuitcourt.state.il.us/bkshelf/guardian/guardian.htm