Guardianship Fact sheet

The Office of State Guardian advocates for the rights of over 5,300 disabled adults in Illinois. By law, the Office of State Guardian serves as guardian only when no other person is suitable and willing to serve. With nine regional offices, the State Guardian is active in virtually every county in Illinois. In addition to serving as guardian, the State Guardian offers guidance and advice to persons requesting such assistance. The Office of State Guardian encourages maximum self-reliance and independence. Where possible, alternatives to guardianship should be pursued.

Illinois has one of the most unique and progressive guardianship laws in the United States. Previously, disabled persons were termed "incompetent" and "conservators" were appointed by Probate Court to care for the disabled person's estate and finances. In 1979, the Illinois Probate Act was amended to provide statutory protection for disabled persons. Entirely new forms of guardianship were established. Most importantly, new procedures for the appointment of guardians and for the supervision of disabled persons and their estates were created.

Guardianship is needed when a person is unable to make and communicate responsible decisions regarding his personal care or finances due to a mental, physical or developmental disability. Without more, a mental, physical or developmental disability is not sufficient for the appointment of a guardian. The fact that a person is elderly, mentally ill, developmentally disabled, or physically disabled does not necessarily indicate a need for guardianship. The extent to which a guardian is allowed to make decisions for a ward is determined by the court based on a thorough clinical evaluation and report.

Two basic types of guardianship are "person guardianship" and "estate guardianship". A "guardian of the person" is appointed by the court when a disabled individual cannot make or communicate responsible decisions regarding his personal care. This guardian will make decisions about medical treatment, residential placement, social services and other needs. The court appoints a "guardian of the estate" when a disabled person is unable to make or communicate responsible decisions regarding the management of his estate or finances. The guardian will, subject to court supervision, make decisions about the ward's funds and the safeguarding of the ward's income or other assets.

The Illinois Probate Act gives the court the flexibility to tailor guardianship to meet the needs and capabilities of disabled persons. Depending on the decision-making capacity of the disabled person, the court can appoint a limited guardian who is granted the power to make only those decisions about personal care and/or personal finances that the court specifies. The court can also appoint a plenary guardian who generally has the power to make all decisions about personal care and/or finances for the disabled person.

In anticipation of emergencies, the Probate Act provides for specific remedies to temporarily safeguard alleged disabled persons. A temporary guardian may be appointed by the court for the period between the filing of a petition for guardianship and the conclusion of the court hearing where the need for guardianship is decided. Temporary guardianship, which lasts no longer than 60 days, is a means to ensure that an alleged disabled person receives immediate protection. It is intended only as a short term remedy and is utilized only where a demonstrated harm or emergency exists.

For the most part, any person 18 years of age and older who has not been convicted of a serious crime and who is of sound mind can serve as guardian, if the court finds the person suitable. A guardian must be a legal resident of the United States. Public and private not-for profit agencies also are eligible and encouraged to participate in the guardianship role. Only agencies providing residential services to disabled persons residing in their facilities cannot serve as guardians.

Family members are not automatically named the legal guardian for their disabled relative. In all cases, the court will make a determination as to the need for guardianship and who should serve as guardian. A family member may petition the Judge to be named guardian or the disabled person may express a preference as to his guardian. If the disabled person expresses a preference, the Judge will give consideration to the disabled person. However, the Judge appoints whomever will make the best guardian and act in the best interest of the disabled person, regardless of the party's relation to the disabled.

Guardianship is a court-created responsibility. In order for a guardian to be appointed, a petition must be filed in the court by an "interested person". The petition includes basic information, such as the name, date of birth and address of the person alleged to be in need of guardianship. A report must also be filed which includes a physician's description of the person's physical and mental capacity along with their relevant evaluations which would enable the Judge to determine the kind of guardianship needed.

Guardianship hearings are set within 30 days of a petition being filed with the court. The alleged disabled person, or Respondent, must be served with summons and a copy of the petition. The Respondent may be represented by an attorney, have a jury trial and present evidence and cross-examine witnesses. Where appropriate, the court will appoint an attorney or lay person to serve as the guardian ad litem. The guardian ad litem acts as the "eyes and ears" of the court, and advocates for the best interest of the Respondent. Before the hearing, the guardian ad litem must interview the Respondent, inform him of his rights, and investigate the appropriateness of guardianship. If the alleged disabled person opposes the opinions of the guardian ad litem, or disputes the need for guardianship, the court may appoint an attorney to represent the Respondent.

At the hearing, evidence about the Respondent's health, mental faculties, finances, housing and life style is presented. The guardian ad litem reports to the court as to the condition of the Respondent and may recommend the type of guardianship needed. The court reviews all the information presented, including the physician's report, the testimony of witnesses and the testimony of the guardian ad litem. Finally, the court either enters a limited or plenary guardianship order or finds that no guardianship is warranted.

An appointed guardian is responsible for overseeing a program intended to maximize the ward's self-reliance and independence. A person guardian also may be required to submit an annual report to the court concerning the services provided to the ward and the status of the ward's personal care. Estate guardians must file inventories of the ward's assets and periodic accounting of estate receipts and disbursements. All estate expenditures are subject to court review, and the guardian may be held accountable for estate assets improperly managed.

If a change in guardianship seems indicated at any time, or if the annual report recommends that guardianship be changed or revoked entirely, a petition for modification or termination of guardianship can be filed. Based on this, the Judge may then terminate the guardianship or modify the guardian's duties. A court may also appoint a successor guardian if a guardian is unwilling or unable to perform his duties.

Any party filing a petition for guardianship usually is required to pay fees for filing, sheriff's fees for the service of summons on the Respondent, and attorneys fees. Although it is not required, petitioners are generally represented by attorneys, particularly in contested guardianship cases. In some cases, the petitioner may pay fees for the services of the guardian ad litem or the physician who prepares the medical report. If the alleged disabled persons has funds, these may be used to pay costs and fees.

Guardianship can be costly and complicated. In many cases, alternatives to guardianship can and should be used. Guardianship should be considered a last resort, a mechanism by which a person's legal rights are taken away for a sound and necessary purpose. It should never be used in a retaliatory manner or as a convenience for a health care provider or a family member.

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