An "allegedly Disabled Adult" is a person 18 years or older who 1) because of mental deterioration or physical incapacity is not fully able to manage his or her person or estate, or 2) is a person with mental illness or developmental disability and who because of mental illness or developmental disability is not fully able to manage his or her person or Estate, or 3) because of gambling, idleness, debauchery or excessive use of intoxicants or drugs, so spends or wastes his or her Estate as to expose the person with disability or dependents to want or suffering.
There are generally two types of Guardianships in Illinois: a Guardianship of the Person, and a Guardianship of the Estate. Perhaps the most important, and often most difficult, principle of a guardianship is that the disabled adult’s independence and self-determination should be preserved to the maximum extent possible. If the Disabled Individual is able to make some, but not all, of his or her own decisions, the court will appoint a Limited Guardian. If the Disabled Individual is not able to make any personal or financial decisions, the court will appoint a Plenary Guardian.
In determining the need for a Guardianship of the Person, two prominent issues are the ability of the person to make 1) medical decisions and 2) decisions regarding residential living arrangements. If a person is unable to give informed medical consent or make appropriate decisions about living independently in a residence, a Guardianship of the person should be considered.
Guardianship of the Estate is necessary if a person cannot manage his or her financial affairs. In that case, a Guardian is appointed to handle the payment of the Ward's bills, investment of his assets, deal with governmental agencies, and otherwise manage his or her assets and liabilities, subject to court oversight.
To begin the Guardianship process, the first document that the Guardianship Attorney will ask you to obtain is a physician’s report. This report, which is a court form, allows the Disabled Person’s primary physician to detail the extent of the disability and to confirm that the Disabled Person is in need of an alternate decision-maker.
The Guardianship proceeding is commenced by the filing of a Petition for Guardianship. The Petition is a statement that alleges the need for the appointment of a Guardian for an alleged person with a Disability. The reason for Guardianship should conform to the actual diagnosis given in the physician's report, and should also conform to the basic statutory criteria, which include mental deterioration, physical incapacity, developmental disability or mental illness and an inability to manage personal or financial affairs due to such deterioration, incapacity, disability, or illness.
The person filing the Guardianship proceeding is usually seeking to be appointed Guardian. The court will generally consider a number of factors in appointing a Guardian, including the personal character of the person seeking to be appointed, the relationship of that person to the Disabled Person (the "Ward"), and the availability of the person to perform the duties of Guardian (i.e., does the person have the time and the energy to devote to the duties of a Guardian). When determining who should serve as Guardian, the best interests of the Ward are paramount.
A Guardianship Summons is the legal notice physically served upon the Respondent (the allegedly Disabled Person) which advises him or her of the time, date, and place of the Guardianship hearing, the right to appointed counsel, the right to a jury trial, the right to request the appointment of an expert witness and other legal rights. The summons and a copy of the Guardianship petition must be personally served on the Respondent not less than 14 days before the Guardianship hearing. An adjudication of Disability cannot occur without proof of personal service on the Respondent.
The court will protect the Respondent's rights to due process throughout the Guardianship proceeding and Respondents are absolutely entitled to appear at Guardianship hearings, cross examine witnesses, and present evidence. Guardianship hearings may be closed to the public at the request of the Respondent, the Guardian ad litem, or the appointed counsel.
A Court may appoint an Attorney to represent the Respondent, if the court finds that the Respondent's interests will be best served by the appointment. A Respondent may request that the court appoint independent medical, psychiatric or other evaluations to attempt to refute allegations made by the experts retained by the petitioner. In an uncontested Guardianship case, the court will focus on the physician's report.
If a Guardian ad litem is appointed, a brief oral report discussing issues of importance may be made. The Court will then rule, after considering the following factors:
- The nature and extent of the Respondent's general intellectual and physical functioning,
- The extent of the impairment of the Respondent's adaptive behavior if the person is developmentally Disabled, or the nature and severity of the person's mental illness in the case of a person with mental illness,
- The understanding and capacity of the Respondent to make and communicate responsible personal decisions,
- The capacity of the Respondent to manage an Estate and financial affairs,
- The appropriateness of proposed and alternate living arrangements,
- The impact of the Disability upon the Respondent’s functioning in the basic activities of daily living and the important decisions faced by the Respondent or normally faced by adult members of the Respondent’s community, and
- Any other appropriate area of inquiry.
The court appoints a Guardian as a decision-maker because the Court cannot be involved in each disabled individual’s daily needs or be responsible for making decisions on behalf of the ward. However, once a Guardian is appointed, it is important that the Guardian understand that this authority comes with court oversight of the Guardian's actions. Guardians must seek court permission BEFORE making expenditures on behalf of the disabled individual:
- if the disabled individual’s health status changes;
- if the disabled individual’s living arrangements are to be changed in any way.
As we mentioned, navigating the Guardianship process can be a daunting task. At Huck Bouma, we have the years of expertise and knowledge to manage every aspect of Special Needs Planning and Guardianship; let us guide you through the process so you can focus on the needs of your loved one.