What is a Guardian?
A guardian is a person, institution or agency appointed by a County’s Probate Court to manage the affairs of another, called the ward.
When might a person 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 (1) mental deterioration, (2) physical incapacity, (3) mental illness, or (4) 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.
How does a Guardian get appointed?
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 also has its own local rules.
What are the initial steps in the Guardianship process?
Before starting a court proceeding, one must obtain a report certifying that the person is disabled and needs a guardian. 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:
(1) 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; (2) 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 performed within 3 months of the date of the filing of the petition; (3) an opinion as to whether guardianship is needed, and the reasons therefore; (4) a recommendation as to the most suitable living arrangement and, where appropriate, treatment or habitation plan for the respondent and the reasons therefore; (5) 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.
Who represents the disabled individual?
A person facing guardianship adjudication has the right to a court appointed attorney and a trial by a jury of six persons. An individual facing 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.
In guardianship proceedings, what is a guardian 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.
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 or the petitioner's attorney to discuss the guardianship case with the guardian ad litem prior to the court hearing.
What paperwork should be prepared for filing with the 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.
How does a Guardianship case proceed in court?
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.
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.
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. 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.
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 a 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. 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.
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. 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.
Are there alternatives to Guardianship?
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 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.
Who may act as a Guardian?
Any person at least 18 years of age who is not of unsound mind 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 in Illinois?
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, habitation, 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.
What are the duties of the personal guardian?
As Personal Guardian, you have probably been given custody of the disabled person or minor, this person often being called the ward. If the ward has minor or dependent children, you may have custody of them as well.
You have a duty to take care of your ward. You will decide where the ward will live. You cannot place the ward in a nursing home or other residential facility unless the Court specifically gives you that authority. You are responsible for the ward’s support, care, comfort, health, maintenance and placement, if appropriate, in an educational program; all from the ward’s income and assets. You are to see that your ward gets the medical, dental, grooming, and other professional services that the ward needs. The law requires that you "assist the ward in the development of maximum self-reliance and independence".
You are not required to spend your own money for any of these expenses. You may be responsible for seeking the money needed from the ward’s income and assets.
If you spend more or incur debts greater that the ward’s estate can afford, you may be held personally responsible for those amounts. If the ward does not have enough money to pay for what is needed, it is your responsibility to apply for government assistance programs that may help pay for these services. You do not have to spend any of your own money for the benefit of your ward unless you area a disabled ward’s spouse.
What are the duties of the estate guardian?
Simply put, the estate of the ward is everything the ward owns. It includes land, money, bank accounts, furniture, cars, clothes . . . everything. Your responsibility over this property may be defined or limited by the order appointing you as Guardian.
In general, you have the duty to take care of, manage, and invest the ward’s estate. You must take care of the ward’s estate even more carefully than you would your own. You must be frugal, conservative and cautious. The Court may authorize you to spend the ward’s money for the comfort, support and education of the ward, as well as certain expenses of the ward’s family.
If the ward receives benefits from the Veterans Administration, you must give the Veterans Administration notice before requesting this authorization from the Court.
You may be able to sell some of the ward’s property to pay for the ward’s care, but you will need a Court order to do so. You cannot treat the ward’s property as your own! You must keep your money separate from that of your ward.
You should establish a new, FDIC fully-insured checking account to pay for the ward’s expenses. It should be titled: Estate of "your ward", "your name", Guardian. The ward’s Social Security number should be used on this account.
You must keep a careful record of all transactions involving any of the ward’s property. This can range from balancing the checkbook to hiring an accountant at the estate’s expense. Every bill that you pay and all money that you receive on behalf of the ward periodically must be reported periodically to the Court. To be able to identify the source of money you receive when the time for accounting comes, it can be helpful to describe the source of the money on the bank deposit ticket.
You cannot sell, lease, mortgage or use as security the ward’s land, house, car, furniture or any other property without a Court order. You also will need the Court’s permission to operate an ongoing business of the ward’s. Seeking permission from the Court commences with filing a petition in the Circuit Clerk’s Office. You may not take any of the ward’s property out of the State of Illinois.
What is the Inventory?
As Estate Guardian, the first deadline you have to be concerned with is the filing of an Inventory. The Inventory must be filed with the Court within 60 days of your appointment as Guardian. The Inventory is a sworn document that lists all of the ward’s assets.
You must list all the land the ward owns, describe generally any building on such land and, if there are mortgages on the property, give details of the mortgages. You must list all bank accounts, with balances as of the date of your appointment. The ward’s cash should promptly be put in a Federally insured, interest-bearing bank account, if feasible. Any cars, boats, stocks, bonds, insurance policies. Valuable artwork or jewelry, or other unusually valuable items should be listed separately. Small household items may be lumped together.
If the ward owns something jointly with another person, that property also should be listed with a notation that it is jointly owned. The full value of that property should be stated.
You will have to petition the Court to sell or spend any property the ward owns jointly with anyone else, including you, on the ward’s behalf.
If, after filing the Inventory, you find additional assets, you must file a supplemental inventory within 60 days of discovering the additional assets.
What if the ward receives Social Security benefits?
If the ward has been receiving Social security benefits, you should contact the local Social Security office and inform that office of your appointment as Guardian. You will need to provide the Social Security office with the Court documents (often titled Letters of Office) appointing you as Guardian. The Social Security office can provide you with information on using the benefits on behalf of the ward. It may be convenient to have the Social Security checks directly deposited in the new Guardianship account. Social security benefits should be spent before any of the ward’s other assets.
What if the ward receives VA benefits?
If the estate of the ward is derived in full or in part from payments made directly to the estate by the Veterans Administration, notice of any application or leave to invest or spend any of the ward’s funds must be given to the Veterans Administration regional office. You should contact either your attorney or a representative of the Veterans Administration office for details as to how this is to be handled.
How are the ward's taxes handled?
You are responsible for filing the ward’s income tax returns, both federal and state, if the ward has enough income to require the filing of returns. You will be responsible for paying any estimated income taxes due in April, June, September, and January. You can pay all these taxes with the ward’s money.
You must pay the real estate taxes on any land that the ward owns. You should look into all exemptions available to the ward, such as elderly and homestead. These taxes also can be paid with the ward’s money.
Are there any other duties or restrictions of the Guardian?
* You have the duty to appear for and represent the ward’s interests in all legal proceedings. You may hire an attorney to handle any legal matters involving the ward or the ward’s property. With the Court’s permission, you may use the ward’s funds to pay these attorney fees.
* You may have a duty to apply for public aid from the Department of Human Services on your ward’s behalf. This Department is commonly known as the Public Aid office. The Illinois Department of Human Services will inform you as to whether your ward qualifies or of what steps you need to take so that your ward will qualify. The guidelines vary greatly depending upon whether your ward is married or single, has dependents, and owns certain assets. Additional information may be obtained from your local Human Services office. Do not wait until your ward runs out of funds to seek this help.
* You also may have a duty to apply for the State of Illinois program known as the Circuit Breaker. If your ward is 65 or older, or at least 16 and totally disabled, and has an annual household income below a certain amount, you should look into applying for the Circuit Breaker. This program provides cash rebates for property taxes, a small rebate for various other taxes, and a small grant for blood pressure, heart, diabetes and arthritis medicines. Additional information and applications may be obtained from:
Illinois Department of Revenue
Circuit Breaker Program
Willard Ice Building
101 West Jefferson Street
Springfield, IL 62794-9015
Phone Toll-free: 1-800-624-2459
* You cannot use the ward’s assets to make any gifts or donations without a Court order.
How can a ward’s money be invested?
It is the duty of the Estate Guardian to invest the ward’s money in accounts that earn interest at a rate equal to or greater than the rate on 90-day United States Treasury Bills. If you fail to do so, you may be assessed penalties. You may, however, keep reasonable sums for money which do not earn such interest available to pay for the ward’s current expenses.
The law limits you to specific kinds of investments, unless otherwise authorized by the Court. These investments are specified in the Illinois law, but to summarize them, they would include bonds backed by the United States or its agencies; federally-insured accounts in banks, savings and loans, and credit unions; real estate; certain kinds of annuities; and certain kinds of money market funds. Before making an investment, you should consult with an attorney knowledgeable in this area.
Other kinds of investments, such as corporate stock, are allowed by law, but there are detailed restrictions regarding such investments.
With the approval of the Court, the estate may retain any of the ward’s investments made prior to your appointment.
You should make certain that funds on deposit in any one financial institution do not exceed FDIC insurance limits.
How can a Guardianship be terminated?
Your responsibilities as Guardian will continue until the Court relieves you of the obligation. This may occur upon the termination of the Guardianship, upon the death of the ward, or upon your resignation or removal. This applies to both Guardianships of the Person and of the Estate.
The Guardianship of a Disabled Person may be modified or terminated if the disabled ward’s capacity to manage his or her affairs changes. Also, you have the right to resign as Guardian at any time.
If you wish to resign, or if the Guardianship should be terminated because it is no longer necessary for the ward, you must petition the Court for permission to resign or to terminate the Guardianship. If you are resigning as Guardian, and if the ward remains disabled, you will need to request the Court to appoint a Successor Guardian. If a disabled ward’s capacity is restored, you should obtain the Court’s permission to transfer the ward’s property to the ward. In either case, you will be required to prepare a final Account listing all transactions made since the last Account was prepared.
Any Guardianship will terminate upon the death of the ward. If your ward dies, you must notify the Court and request that the Guardianship be closed. Until an Administrator or Executor is appointed to manage the deceased ward’s assets, you retain the authority to manage and collect the ward’s assets if you are the Estate Guardian. You do not have the right to make any more payments from the ward’s estate. If you served as estate Guardian of the deceased ward, you will need to prepare a Final Account listing all transactions made since the last Account was prepared.
Finally, it is possible for the Court to remove you as Guardian if it finds that you are not performing all of your duties properly, for instance, if you: are found to be incompetent or are committed to a mental health institution; are convicted of a felony; waste or mismanage the ward’s estate; fail to give sufficient bond after being ordered to do so by the Court; fail to file an Inventory or Accounting after being so ordered by the Court; move so that you cannot be found by the Court or others involved with your ward’s care; become incapable of, or unsuitable for, discharging your duties for any reason; or if there is any other good reason, such as the death of the Guardian.
Before removing someone as Guardian, the Court will give the Guardian an opportunity to appear in Court and explain the situation. After hearing all of the evidence pertaining to the Guardianship, the Court will decide whether or not the Guardian should continue to serve. The Court can impose any restrictions on the Guardian’s actions that it deems are necessary to protect the ward.
CONTACT US:
The Olson Law Firm, LLC
312-629-9900
petero@olsonlawfirm.net
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