Illinois provides protection for disabled adults through the well-defined disabled adult guardianship laws. Guardians can be appointed in Illinois when an adult is unable to fully manage their property, handle their finances and when they are unable to care for themselves on a day to day basis. Most of us do not think twice about paying our monthly bills, maintaining our cars, going to the grocery store, etc., but there are many adults who need help with these basic life decisions.
Is a Disabled Adult Guardianship Needed for a Friend or Family Member?
Are you close with someone you believe may qualify or need of the protection provided by an adult guardianship? If they have special needs, or have disabilities, a legal guardianship may very well be needed. If possible, talk to the person you are concerned about. Get their input and discuss the idea of having the Court appoint a guardian appointed for them by the Court.
How Do I Start the Illinois Adult Guardianship Process?
Petition the Court and Serve the Alleged Disabled Person
To start the process of appointing a guardian for an alleged disabled adult you will need to draft a petition. The disabled person must be adjudicated as a disabled person by a Court prior to a guardian being appointed. Many Illinois counties have the necessary forms available online. Once completing the necessary forms, the petition must be filed with the clerk. Then the alleged disabled person must be personally served with the petition and a summons. The summons lets the alleged disabled person know what is going on and notifies them of the court date. It provides them with information regarding their rights.
What Type of Adult Guardianship is Needed?
Before you begin, it is important to know what type of guardianship you are seeking. Questions to consider:
- Does the adult you’re concerned about need help with their day to day life?
- Do they need help with living arrangements and medical care?
- Are their needs just related to finances and legal issues?
- Do you they need assistance with both financial and person decisions?
In Illinois there are different types of guardianships that can protect a disabled adult in Illinois, which are Plenary Guardianship, Limited Guardianship, Successor Guardianship, Testamentary Guardianship, and Temporary Guardianship. In a plenary guardianship, the guardian is going to have more power to make decisions. In a limited guardianship, the guardian will only be able to make certain decisions since the order appointing them as a guardian will be more specific as to what power they do have than that of a plenary guardianship guardian. A Temporary Guardianship is in an emergency situation.
Requirement of Oath and Bond
Being a guardian is a big deal and prior to being appointed you will need to swear that you are going to carry out the duties of guardian faithfully. This generally requires a surety bond. If it is determined that your mishandled the estate, you can be ordered to pay back the estate.
Appointment of Guardian Ad Litem
The Guardian ad litem needs to investigate the facts and make a report to the Court prior to anyone being appointed as a guardian. They meet with the Ward prior to reporting to the Judge.
Who is typically involved in the Adult Guardianship process?
This is the person who files a petition with the court asking for a guardian to be appointed. Many times, the Petitioner is asking to be appointed as the guardian of a loved one.
The Disabled Person (the “Ward”)
This is someone who is eighteen (18) or older and is unable to manage their day to day personal life or finances because some sort of mental deterioration, physical incapacity, mental illness, developmental disability, etc. Once the disabled person is declared “disabled” by the court pursuant to the Probate Act, they are now referred to as the “Ward.”
The Judge has the power to grant or deny petitions for guardianships. The Judge is able to appoint someone (usually an attorney) on behalf of the disabled person to investigate the facts of the case. The Judge declares the adult to be disabled. The Judge enters orders and guardians report to the Judge.
This is who is appointed by the Judge to make the Ward’s personal and financial decisions. A guardian can be a person, an agency, or an institution. A guardian can be appointed over the ward’s estate and their “person” but there are also cases when someone is appointed as the guardian of the estate (financial issues) and someone else is appointed as guardian of the person (personal issues). The bottom line is that a guardian manages the affairs of the ward- personal or financial.
The Guardian ad Litem
This is a person appointed by the Court to look out for the Ward’s best interests. They investigate the matter prior to a guardian being appointed.
What happens after I am appointed as Guardian to a Disabled Adult?
Being appointed as a guardian is a very big responsibility. You will be issued what are referred to as “Letters of Office.” This is an important legal document appointing you as the guardian. You must follow the law and all court orders. You must make sure that your decisions are always in the best interest of the ward. If you are the guardian of the person, you will need to give an annual report on the ward. If you are the guardian of the estate, you will initially need to file an inventory and then you will need to present an annual accounting of the estate.
Remember that there are certain times when you need to get permission from the court before moving forward. Some examples include, selling the Ward’s property and real estate, placing the Ward in a facility, filing for divorce for the ward, letting the Ward get married, etc. Also remember how important it is to keep the Ward’s assets and income separate from your own, as you must be able to account for anything that is missing. The easiest way to keep things separate is to open a separate account at the bank. Make sure important financial documents are being delivered to you so that you can pay the Ward’s bills on time. Remember you have to file the Ward’s taxes. The list goes on and on. It is best to seek legal assistance before filing for guardianship to ensure that you are fully aware of your potential responsibilities going forward prior to being appointed as a guardian.
Can a Guardianship be Terminated or Modified and when does it end?
Yes, the Court can terminate the guardianship or modify the guardianship. The guardian can resign. The guardian can be removed. The Court can terminate their finding that the Ward is disabled and therefore terminate the entire guardianship. The Ward is able to petition for any of the above, however, the guardianship typically ends when the Ward passes away.
What Can Make Guardianships More Complex?
- The Disabled Person does not want a guardian
- The Disabled Person does not want you specifically as their guardian
- A relative that does not agree to you as the guardian
- The estate of the Disabled Person is significant (Lots of money and assets)
- Real estate is involved
- Abuse is suspected (physical/mental/financial)
- Powers of attorney are already executed for health and property
Who Can Serve as My Guardian?
Typically, family members or close friends serve as guardians, especially as guardian of the person. Banks are often appointed as the Guardian over financials, especially when the estate is large. There are times when a disabled person does not have anyone willing to serve and there are times when the people willing to serve are not qualified to do so. In those situations, the Illinois Office of State Guardian is there to help and serve as guardian.
Remember that a Guardian needs to be at least eighteen (18) year old. They must be a U.S. resident. They cannot be legally disabled themselves. They must be of sound mind. They cannot have felony convictions relating to abuse.
If you believe an adult guardianship may be necessary for your loved one, be sure to seek experience legal advice. Feel free to contact our office today to schedule a confidential consultation if you need input and advice disabled adult guardianship.