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a. Alternative Decision Making Devices

Although many states, including Illinois, have adopted surrogate decision making statutes which enable a guardian or another surrogate decision maker to decide medical issues on behalf of a ward without resort to court review, we feel that it may be helpful to include Illinois case law that guided guardians before the enactment of the Health Care Surrogate Act. Although the precedential value of the cases may have been diminished, they may helpful to understand the development of the law, and are included below.

The Health Care Surrogate Act, 755 ILCS 40/1, et seq., a direct response to the Longeway case, was created in 1991 to enable a surrogate to make health care determinations for an incapacitated person who requires medical decision-making. Under this law, a guardian, parent, spouse, child, sibling, relative, or a friend of a person who lacks capacity to consent or refuse medical decisions, can act as a substitute decision maker. The Act requires no court intervention.

The surrogate decision maker may act without court appoint­ment, and is legally authorized to decide to forego life sustaining treatment, where a doctor has found a qualifying medical condition, such as terminal illness, or a persistent vegetative state, to be in place. The doctor must also find that the person lacks decisional capacity as it relates to the issues of the case, and a consulting physician must also agree with the diagnosis and the absence of decisional capacity. The process provided for under this law may be invoked where no guardian has been appointed, and no power of attorney or living will have been executed.

In addition, a guardian may act as a surrogate decision maker without court order, even on decisions involving the right to make medical treatment decisions such as decisions to forgo life‑sustai­ning treatment. Section 11a‑17(d). Consequently, guardianship may be used as a way to use the features of the HCSA.

b. End of Life Decision Making

In re Estate of Longeway, Illinois Supreme Court, 549 N.E.2d 292, 133 Ill.2d 33, 139 Ill. Dec. 780,  (1989). It was permissible, under defined circumstances, for a trial court to authorize a guardian of an incompetent, terminally ill patient to consent to the with­drawal of nutrition and hydration. The Court emphatically stated that it did not condone suicide or active euthanasia in Illinois. A procedure to be followed in court, requir­ing proof of terminal illness, and that the patient was either irreversibly coma­tose, or in a per­sistent vegetative state was mandated. An attending physician and at least two other consult­ing physi­cians were also required to concur with the diagno­sis, and most likely to testify in court. The court required a balancing of the patient's right to end treatment against four legitimate state interests, none of which ­ would normally override a patient's refusal of artifi­cially administered food and water:

1)         the pres­erva­tion of life

2)         the protection of the interests of innocent third parties

3)         the prevention of suicide, and

4)         maintain the ethical integrity of the medical profes­sion.

The Court also required inquiry into the patient's personal value system, using a basic substitut­ed judgment process where the surrogate decision maker attempts to establish, with as much ac­curacy as possible, what decision the patient would make if competent to do so.  Finally, the Court mandated trial court involvement. Trial court intervention was considered necessary to uphold the strong public policy of preserving the sanctity of human life.

In re Estate of Sidney Greenspan, a Disabled Person (Patrick T. Murphy, Public Guardian of Cook County and Guardian of the Person of Sidney Greenspan), Supreme Court of Illinois, 558 N.E.2d 1194, 137 Ill.2d 1, 146 Ill. Dec. 860 (1990).  A public guardian has the same standing to pursue a withdrawal of a treatment petition as a private guardian. Though a guardian's duty is to act in a ward's best interest, such a standard is necessarily general and must be adapted to particular circumstances. One such circumstance is a ward's wish to exercise common law, statutory, or constitutional rights, which may sometimes influence or even override a guardian's own perception of best interests. A public guardian is not barred by a best interests standard from seeking relief consistent with a ward's wishes as determined by substituted judgment procedure.


In Re Estate of Lucille Austwick, Legal Advocacy Service; Guardianship and Advocacy Commission,  v.  Patrick T. Murphy, Cook County Public Guardian, Illinois Appellate Court, 656 N.E.2d 773, 275 Ill. App.3d 665, 212 Ill.Dec. 176 (1995).  A guardian may not consent to placement of a Ado not resuscitate order@ in wards' nursing home chart without court approval, where the ward is not terminally ill or in a persistent vegetative state and without decisional capacity. Under Illinois law, a guardian may consent to withhold or withdraw life-sustaining treatment only under the provisions of the Health Care Surrogate Act, 755 ILCS 40/1, et. seq. Under the Act, a surrogate, including a guardian acting as a surrogate, may consent where the ward is found by the attending physician to lack decisional capacity and to have a terminal illness or to be in a persistent vegetative state.   

In the Matter of Guardianship and Protective Placement of Edna M. F., Wisconsin Supreme Court, 210 Wis. 2d 558, 563 N.W.2d 485 (1997).  The Supreme Court reiterated the position that it outlined in the L.W. case, below, and considered whether a guardian of a ward who was not in a persistent vegetative state could agree to the cessation of life sustaining treatment (here, artificial nutrition.)  The court drew a distinction between patients that clearly had no substantial hope of recovery and those in a persistent vegetative state, and refused to extend the L.W. holding to such cases. The Court expressed fears that doing so, coupled with the reality of medical service delivery, could lead to a sanctioning of euthanasia for persons with disability.

The holding did not address other life-sustaining treatment issues, such as assisted breathing devices, the refusal of intensive resuscitation efforts after agreeing to a “no-code” or related areas. The Court’s holding was based in large part on the finding that the ward in this case had failed (when competent to do so) to adequately state her wishes with regard to removal of treatment. By inference, the Court appears to allow a guardian to agree to withdraw or forgo such treatment where the ward’s wishes can be clearly ascertained, as where an advance directive was made at a time when the ward had capacity. Unlike, the L.W. case, the Court did not outline any particular procedure for applying it’s holding.

In the Matter of Guardianship of L.W., Incompetent:  Paul J. Lenze, as Guardian ad Litem, v. L.E. Phillips Career Development Center, Guardian, Wisconsin Supreme Court, 482 N.W.2d 60, 167 Wis.2d 53 (1992).  The right to refuse all unwanted life-sustaining medical treatment extends to incompetent as well as competent individuals. That right to refuse also extends to artificial nutrition and hydration.  The Court held that where there can be no reliable ascertainment of the incompetent's wishes, only the best interests standard can be applied. Further, the Court held that where the determination has been made that withholding or withdrawing life-sustaining treatment is in the best interests, the guardian has not only the authority to but a duty to consent to the withholding or withdrawal of treatment.

A guardian may consent to the withholding or withdrawal of life-sustaining medical treatment on behalf of one who was never competent, or a once competent person whose conduct never was of a kind from which one could draw a reasonable inference upon which to make a substituted judgment, when: 1) the incompetent patient's attending physician, together with two independent neurologists or physicians, determine with reasonable medical certainty that the patient is in a persistent vegetative state and has no reasonable chance of recovery to a cognitive and sentient life; and 2) the guardian determines in good faith that the withholding or withdrawal of treatment is in the ward's best interests. To make the best interest determination, the guardian begins with the presumption that continued life is in the best interests. That presumption may be overcome upon a good faith assessment of the following factors:  the degree of humiliation, dependence, and loss of dignity probably resulting from the condition and treatment; the life expectancy and prognosis for recovery with and without treatment; the various treatment options; and the risks, side effects, and benefits of each of those options. Court approval of the guardian's decision is not required, so long as adequate notice of the decision is given to identified interested parties, and no objections are encountered. The court noted that the judicial process is an unresponsive and cumbersome mechanism for decisions of this nature. Court review remains appropriate where any interested party objects to the decision of the guardian. 

c. Other Medical Decision Making

Broadening of Scope of Health Care Surrogate Act

The Illinois General Assembly amended The Health Care Surrogate Act, 755 ILCS 40/1, et seq., in August 1997, with House Bill 725. With the new provisions, all surrogates, including guardians of the person, can consent to most medical treatment without court approval. The legislature expanded the surrogate powers first established in 1991. In the 1991 law, the surrogate’s powers could be invoked only where a patient was found to have a qualifying medical decision. Under the 1997 amendments, the qualifying condition requirement is eliminated, thus opening the law up to virtually any medical decision-making not specifically covered elsewhere in Illinois law.

The effect of this is to enable surrogates to act where medical decision-making is required, without resort to court proceedings to appoint a guardian, if a surrogate can be found. In cases where a patient has no health care power of attorney and no one able or willing to act as a surrogate, guardianship will still be a health care provider's only alternative, but the new law is expected to drastically reduce the need for guardianship for medical decision-making.

Young V. Oakland General Hospital, Michigan Appellate Court, 437 N.W.2d 321, 175 Mich.App. 132 (1989).  Applying a state statute that gave family members the right to act as health care surrogates under particular circumstances, the reviewing court held that a hospital was correct in accepting the medical consent of a daughter in a case where a grandson disagreed with the recommended treatment that was consented to by the daughter. The grandson, a Jehova's witness, objected to a blood transfusion.  The court found that the daughter had a higher degree of affinity with the patient, her mother, and that relationship qualified the daughter as the legal representative.  Neither the daughter/decision maker nor the mother/patient were Jehova's Witnesses.

d. Residential Placement Decisions Made by the Guardian



In Re Conservatorship of Brady , Minnesota Supreme Court, 607 N.W.2d 781, 2000 Minn. Lexis 176 (2000).  In a case where a daughter sought to have the ward live with her in Pennsylvania, and other family members argued in favor of an institutional placement in Minnesota, the court held that a blanket conclusion that living in a private home is always less restrictive of a ward’s civil rights and personal freedom than living in an assisted-living or other health care facility is unwarranted. The facts of each case should be considered. Properly considered factors would include whether the ward would be closer to family; whether the ward would remain in the community where the ward had lived; whether insurance might pay costs of care in one setting or another; whether the ward had thrived in one type of placement or another; whether a particular choice could meet expected future needs; whether the court would be able to monitor care in one setting or another.

Frey v. Blanket Corp., Nebraska Supreme Court, 255 Neb. 100, 582 N.W.2d 336 (1998).  A guardian placed an adult ward with a chronic mental illness in a nursing home operated by Blanket Corporation. After the ward was killed after an assault by another patient at the home, the personal representative of the ward’s decedent’s estate brought a wrongful death action against the guardian, the nursing facility, and nursing staff. The action alleged that the guardian should have known of the dangerous proclivities of the patient who assaulted the ward. The trial court dismissed the claim against the guardian on summary judgment, finding that the guardian was entitled to quasi-judicial immunity.

In a quirky procedure, the Nebraska Supreme Court “pursuant to (its) authority to regulate the caseloads of the Nebraska Court of Appeals and this court, ….removed the case to (the Supreme Court’s) docket on our own motion.” The Supreme Court rejected the quasi-judicial immunity argument and sent the case back to the trial court for further proceedings. The Supreme Court found that “unlike the functions of a guardian ad litem, prosecutor, or court-appointed expert, the role of a guardian in selecting a residence for an incapacitated ward is not closely related or ancillary to a court’s adjudication of a particular matter.” (emphasis added.)

In explaining the ruling, the Supreme Court noted that “quasi-judicial immunity is not necessary to enable a guardian for an incapacitated person to perform his or her functions without the threat of liability for ordinary negligence, because the guardian cannot have such liability by virtue of the quasi-parental nature of the guardian’s duty” as spelled out in the Nebraska guardianship statute. The statute characterized the guardian’s duty to an adult ward as equivalent to that owed by a parent to an unemancipated child; under Nebraska law, minors cannot maintain negligence actions against parents, unless the conduct involved relates to “brutal, cruel, or inhuman treatment inflicted by a parent.” Accordingly, although the guardian may be immune from actions alleging ordinary negligence, actions for activities that transcend ordinary negligence may apparently still be maintained.[1]

In re Medworth, Minnesota Appellate Court, 562 N.W. 2d 522 (1997).  A conservator may change a ward's abode only where doing so is in the best interests of the ward.  Although a trial court properly determined that a ward needed 24-hour medical services, the court failed to evaluate whether out-of-state relocation was in wards' best interests, or was necessary to provide needed care or services. The welfare of the ward is of paramount importance.

e. Visitation Rights – Access to the Ward


In Re Casarotto, Illinois Appellate Court,  2000 Ill. App. LEXIS 769 (2000). A mentally disabled adult’s guardian challenged a trial court's order, pursuant to the Marriage and Dissolution of Marriage Act, that required visitation between the ward and his estranged father. The appellate court found the trial court’s order to be void for lack of subject matter jurisdiction. The Marriage and Dissolution Act provisions relating to custody of children are only applicable to minor children.

f. Right of Non-Guardian Spouse to Visit Ward

Conservatorship of Kathleen Lord, Minnesota Appellate Court, 2001 Minn. App. Lexis 963 (2001). With physician medical opinion, a Conservator could limit a spouse’s visitation with his wife-conservatee in a residential care facility, a woman suffering from multiple sclerosis and mental illness. The conservatee had argued that her equal protection and marital rights had been violated by the actions of the conservator, the woman’s father, as there had been no medical documentation for the need to restrict visitation. The conservator limited the visits, controlling the duration and appropriateness of the husband’s behavior. The restrictions were necessary because the husband was unkempt and dirty, ate food at meals from the conservatee’s tray, and brought other food into the facility for her to eat. Instead of bathing his wife as promised, he bathed himself in her room. On another occasion, he became upset that his wife was wearing a bra, and tore it off her person. The trial court and the appellate court found the conservator’s restrictions to be reasonable and in the best interests of the conservatee, but remanded the case to the trial court to consider whether a physician might conclude that the husband’s visits were medically contraindicated.


g. Patient Dumping


Jane M. Roberts, Guardian for Wanda Y. Johnson, Petitioner v. Galen of Virginia, Inc., formerly dba Humana Hospital-University of Louisville, dba University of Louisville Hospital, United States Supreme Court, On Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit January 13, 1999.  Per Curiam. No cites available.   The Emergency Medical Treatment and Active Labor Act, as added by '9121(b) of the Consolidated Omnibus Budget Reconciliation Act of 1985, 100 Stat. 164, and as amended, 42 U.S.C. ' 1395dd (EMTALA), places obligations of screening and stabilization upon hospitals and emergency rooms who receive patients suffering from an emergency medical condition.@ The Court of Appeals held that in order to recover in a suit alleging a violation of '1395dd(b), a plaintiff must prove that the hospital acted with an improper motive in failing to stabilize her. Finding no support for such a requirement in the text of the statute, the Supreme Court reversed.

h. Divorce

In re Marriage of Burgess, Illinois Supreme Court,  189 Ill. 2d 270; 725 N.E.2d 1266; 2000 Ill. LEXIS 312; 244 Ill. Dec. 379. (2000).  Illinois Appellate Court, 302 Ill.App. 3d 807, 707 N.E.2d 125, 236 Ill. Dec. 280 (1999). As the appellate court succinctly said, “(c)an a disabled adult’s plenary guardian (a guardian of both the individual’s estate and person) continue a dissolution of marriage action originally filed by the disabled adult prior to the filing of a petition for guardianship and prior to a finding of disability?”

In February 2000, the Illinois Supreme Court found that “(i)n other cases involving guardians' authority to make personal decisions on behalf of a ward, Illinois courts have held that the guardians may make such decisions under section 11a-17 even though the power to do so is not specifically enunciated. For example, courts have held that guardians may decide on behalf of a ward to withdraw artificial nutrition and hydration (see In re Estate of Longeway, 133 Ill. 2d 33, 45-46 (1989); In re Estate of Greenspan, 137 Ill. 2d 1, 16 (1990)), may consent to an adult ward's adoption (In re Adoption of Savory, 102 Ill. App. 3d 276, 277-78 (1981)), and may consent to an abortion on behalf of a disabled ward (In re Estate of D.W., 134 Ill. App. 3d 788, 791 (1985)).”

The Supreme Court then expressly overrode the Appellate Court and reversed its own longstanding decision in the Drews case, finding Drews to be factually dissimilar, and also finding policy reasons in support of a new position.

Among other things, the court found that a 1997 amendment to the Probate Act that required guardians to consider the wards’ previously expressed wishes allowed the guardian to continue the previously filed divorce action.[2] The court also noted that its’ new position was consistent with a  July 16, 1999 amendment to the Probate Act that allows guardians of  the person to maintain previously filed divorce actions on behalf of adult wards.[3]

A note to the Appellate Court’s opinion listed the following summary:

Of the 17 jurisdictions that allow institution (of divorce actions), four allow such action pursuant to express statute or rule (Florida, Massachusetts, Michigan, and Missouri). Eight appear to allow the action outright (Alabama, Arizona, Hawaii, New Mexico, Oregon, Tennessee, Texas, and Washington); and five require some degree of competency on the part of the ward to express a desire for dissolution (California, Delaware, Ohio, Pennsylvania, and South Carolina). 

In re Marriage of Herbert J. Drews, Jr., a disabled person, and Sue Ann Carrothers Drews, Illinois Supreme Court, 503 N.E.2d 339, 115 Ill.2d 201, 104 Ill.Dec. 782 (1986). Guardian of estate and person, absent a statutory authorization, cannot maintain an action for a ward for the dissolution of marriage.

Matter of Parmer, Missouri Appellate Court, 755 S.W.2d 5 (1988).  Where a wife had filed a divorce action before her adjudication of disability, the guardian had authority to pursue the action for dissolution on the wife’s behalf.

Brice-Nash V. Brice-Nash, Kansas Appellate Court, 615 P. 2d 836, 5 K.2d 332 (1991). The decision to sue is a personal one, requiring a voluntary consent and volition on the part of the party bringing suit, which is incompatible with the ability of a person adjudicated Aincapacitated@ with respect to his person and estate does not possess the requisite capacity to file a divorce action.

i. Marriage


In Re Estate of David Crockett, Deceased , Illinois Appellate Court, 728 N.E.2d 765, 312 Ill.  App. 3d 1167, 245 Ill. Dec. 683 (2000). This appeal arose from a challenge to a marriage that occurred four days before the death of the decedent. At the time of the marriage, the decedent suffered from a malignant brain tumor, and was unable to appear at the county clerk’s office to obtain a marriage license. He was also unable to take his marriage vows at a purported bedside marriage ceremony, and a third party surrogate recited the vows on his behalf. The court held that the Illinois General Assembly did not intend to permit marriage by proxy, and reversed the lower court ruling, instructing the trial court to consider whether the marriage was void ab initio or merely voidable.

Jean A. Pape et al. , V. Wilma Louise Byrd, Illinois Supreme Court, 582 N.E.2d 164, 145 Ill.2d 13, 163 Ill.Dec. 898 (1991). The appointment of a guardian of a person is not sufficient, by itself, to show that the person was incompetent to have consented to a marriage, in the same way that the appointment of a conservator is not conclusive on the issue of possession of sufficient mental capacity to execute a will, but may be considered as evidence on that issue.


In re Guardianship of Mikulanec,  Minnesota Supreme Court, 356 N.W.2d 683 (1984). A person with a mental illness, incapacitated with respect to choosing a spouse, may have a conservator appointed for the limited purpose of approving a marriage, in accordance with a statute that gives a guardian power to restrict a ward's civil rights and personal freedom so long as the restrictions are no more than necessary.

Witt  v. Ward, Ohio Appellate Court, 573 N.E.2d 201, 60 Ohio App.3d 21 (1989). The appointment of a guardian is conclusive evidence of a ward's incapacity to do any act that conflicts with the authority given to the guardian. Therefore, there is no conclusive presumption that a ward is competent to enter into a binding contract or deed. However, the appointment of a guardian is only prima facie evidence of incompetency. Therefore, guardianship is only prima facie evidence as to a ward's capacity to marry, make a will or commit a crime.

Power of guardian to grant or object to divorce or annulment of marriage. 32 A.L.R. 5th 673.

j.  Parental Rights


Guardian as Necessary Party - Termination of Ward’s Parental Rights  

In Re K.C., a Minor, Illinois Appellate Court,  2001 Ill. App. Lexis 479 (2001).   A mother, who was an adult disabled ward of the state of Illinois, was served with notice on a hearing to terminate her parental rights and appoint a guardian to consent to the child’s adoption. However, the mother/ward’s guardian was not served and was not a party to the proceeding. The trial court adjudicated the mother’s rights. On appeal, the appellate court found that the mother’s plenary guardian (the Office of State Guardian) was a necessary party to the parental rights termination proceedings. Consequently, the trial court lacked subject matter jurisdiction, and the termination order was void.

In the Interest of Baby Boy Bryant, a/k/a Roy Bryant, A Child Under the Age of 18 Years, 689 P.2d 1203, 9 K.2d 768.  When the State seeks to sever the parental rights of an incompetent parent of an infant, due process requires that service be had on one who is known by the court to be the guardian or conservator of the incompetent parent.  Failure to serve the known guardian/conservator of a ward with notice of the severance proceeding is a denial of due process of law.  A guardian has a duty to protect and aid the ward in a child severance proceeding brought to sever the ward's parental rights to an illegitimate infant.  That duty is so strong that the State specifically prohibits a guardian from consenting on behalf of a ward to the termination of the ward's parental rights. 

k. Abortion/Sterilization


Margaret and Kevin Vaughn Sr. v. Sutton Ruoff, et. al, Eight Circuit U.S. Court of Appeals – WD Missouri, 253 F. 3d 1124, 2001 U.S. App. Lexis 13874 (2001).  Although the woman involved in this case was not under guardianship, the issue may be of interest to guardians. The holding is well articulated in the closing statement of the Court of Appeals: “any reasonable social worker—indeed, any reasonable person, social worker or not—would have known that a sterilization is compelled, not voluntary, if it is consented to under the coercive threat of losing one’s children, and hence unconstitutional.” The Court of Appeals upheld the District Court’s denial of qualified immunity to Ruoff, a social worker who had arranged for the sterilization of Margaret Vaughn, who was mildly mentally retarded.


David and Debra McDaniel vs. Anita Ong , Illinois Appellate Court, 724 N.E.2d 38, 311 Ill. App. 3d 203, 243 Ill. Dec. 729 (2000). Plaintiff guardians sued a nursing home physician for negligence in failing to diagnose a pregnancy that occurred while the profoundly disabled ward resided in the facility. The appellate court upheld the lower courts dismissal on summary judgment, noting that the prior guardian (the deceased father of the plaintiffs) had indicated that he would not have pursued an abortion, had he known that his daughter/ward was pregnant. The court found that the Doctor’s actions caused a loss of the chance to consider an abortion, not the chance to obtain an abortion, and found a lack of proximate cause.

In re Wirsing, Michigan Supreme Court, 573 N.W.2d 51, 456 Mich. 467 (1998).  A Probate court has statutory jurisdiction to hear a guardian's petition for authorization to consent to tubal ligation (sterilization) procedure for a developmentally disabled ward for birth control purposes.  A best interests standard applied and the court was entrusted to exercise sound discretion rather than applying a clear and convincing evidence standard.


In re Estate of D.W. (Margaret Jolivet, Guardian ad Litem, et al.)  Illinois Appellate Court, 481 N.E.2d 355, 134 Ill.App.3d 788, 89 Ill.Dec. 804 (1985). Absent any proof that the guardian was not acting in the best interest of the ward, the trial court had no legal authority to deny the guardian's request for authority to consent to an abortion for the ward. A guardian has broad authority to act in the best interest of a ward; a court's duty in this regard is to ensure that the acts and decisions of the guardian reflect the best interest of the ward by judicially interfering if the guardian is about to do something harmful.

l.  Electroconvulsive Therapy (ECT)


In re Hatsuye T., Illinois Appellate Court, 293 Ill.App.3d 1046, 228 Ill.Dec. 376, 689 N.E.2d 248 (1997). An agent acting under a mentally ill person's health care power of attorney petitioned to be appointed guardian in order to consent to the involuntary administration of electroconvulsive therapy (ECT). The trial court appointed the agent temporary guardian and authorized as many as ten ECT treatments. The Appellate Court objected to this use of guardianship, and held that the trial court lacked subject matter jurisdiction to authorize a guardian to consent to ECT treatment.  In this case, the respondent/ward had executed a valid health care power of attorney that specifically excluded the power to consent to ECT. The reviewing court would not allow the trial court to use the guardianship law to lay aside the clearly expressed intent of the ward, which was made in the power of attorney form at a time when the ward was competent.


In Re Winifred Branning, Illinois Appellate Court, 674 N.E.2d 463, 285 Ill.App.3d 405, 220 Ill.Dec. 920 (1996).  The Appellate Court found state ECT statute to be unconstitutional, holding that the refusal of unwanted ECT, psychosurgery and the like to be a significant liberty interest. Adopting the Illinois Supreme Court's reasoning in the case of In Re C.E., 161 Ill.2d at 214, 204 Ill.Dec. at 127, 641 N.E.2d at 351, the court found that the treatment is of a substantially invasive nature@ and has a significant side effects.@ The court also concluded that the procedure had potential for misuse and subversion to a patient control rather than patient treatment. @ With respect to guardianship, the court held that Awardship is not determinative ... of the question of whether a patient is able to make a rational decision regarding treatment.@ The court held that A(a) ward is not by definition unable to make a rational decision regarding treatment. When a court is presented with a petition for the involuntary administration of psychotropic medication, it must find by clear and convincing evidence that the potential recipient is unable to make a rational decision regarding treatment.@

In criticizing the state statute which had authorized guardians to consent to ECT, the court said that the statute does not specify the level of evidence by which anything must be proved, nor for that matter does it state what must be proved except that the guardian has given informed consent and believes the services are in the ward's best interest.@ The court then suggested criteria which should be present to make a hearing satisfy basic due process considerations. The court said that A(a)t a minimum,  . . . the ward must receive a hearing at which he will be allowed to appear, present witnesses on his own behalf and cross-examine witnesses against him. He must receive competent assistance at this hearing, although due process does not require that the assistant be a lawyer. The ward must be shown to be unable to make a reasoned decision for himself about the treatment and the treatment must be shown to be in his best interest, which allows consideration of the ward's substituted judgment and includes a requirement that the treatment be the least restrictive alternative. The ward is also entitled to an independent psychiatric examination.@


In Re the Estate of Lucille Austwick, a Disabled Person, Legal Advocacy Service, Guardianship and Advocacy Commission,  v. Patrick T. Murphy, Cook County Public Guardian, Appellate Court of Illinois,  656 N.E.2d 779, 275 Ill.App.3d 769, 212 Ill.Dec. 182  (1995). The court required a substituted judgment test to be used, with clear and convincing evidence required to show that the ward lacks capacity to accept or reject electroconvulsive therapy The court adopted the same stringent requirements set in place for administration of psychotropic medication. Guardian may agree to treatment only with court approval, and acts as hand of court, and is always subject to court's direction in the manner in which guardian provides for care and support of a disabled person.

m. Admission of Ward to Mental Health Facility

In re Ronald Eugene Gardner, Appellate Court of Illinois, 459 N.E.2d 17, 121 Ill.App.3d 7, 76 Ill. Dec. 608 (1984).  Guardian may not consent to involuntary admission of a ward to psychiatric facility; to do so would provide an alternative means to admit patient that was not intended by the General Assembly. The Mental Health Code provisions relating to involuntary civil commitment are the exclusive remedies available.

n. Guardian as Necessary Party – Ward’s Petition for Conditional Release From State Institution

 Allen Preston v. State of Missouri, Missouri Appellate Court, 33 S.W. 3d 574, 2000 Mo. App. Lexis 1528 (2000).  Although a guardian is not required to join in a petition brought by a ward for conditional release from a secure state operated mental health facility, the guardian must at least be joined as a necessary party in the matter, a jurisdictional requirement in considering the matter. “The guardian has a statutorily created interest in a ward’s conditional release proceeding, which would be impaired or impeded by the guardian’s absence there from.”

o. Consent to Psychotropic Medication

In Re the Estate of Lucille Austwick, a Disabled Person, Legal Advocacy Service, Guardianship and Advocacy Commission,  v. Patrick T. Murphy, Cook County Public Guardian, Appellate Court of Illinois,  656 N.E.2d 779, 275 Ill.App.3d 769, 212 Ill.Dec. 182 (1995) See above.



p.  Right of Ward to Enter into Contracts, Hire Counsel

In re Conservatorship of Nelson, Minnesota Appellate Court, 587 N.W.2d 649 (1999). After the establishment of a conservatorship of the person and estate, a ward attempted to hire an attorney who filed a petition requesting modification of the conservatorship, challenging the sale of the ward’s real estate, and seeking attorney fees. The ward was not seeking termination of the guardianship. The appellate court held that, since the ward had lost the ability to contract (without the approval of the conservator) with the adjudication of disability, the ward lacked the ability to enter into a contractual agreement with the attorney. The ward argued, through his purported attorney, that Minnesota’s statutory rights to petition for restoration of capacity, for modification of a conservatorship, and to prevent or initiate a change of abode could be illusory without legal representation. The appellate court disagreed, asserting that statutory safeguards exist to protect a ward’s best interests, including the oversight of the court and the appointment of a court visitor.


q. Driving Privileges

In re Estate of Robert Walder Thompson, Appellate Court of Illinois,  542 N.E.2d 949, 186 Ill.App.3d 874, 134 Ill.Dec. 603 (1989). Ward should not be deprived of driving privilege absent a showing of detrimental impact to wards' estate.

[1] Illinois law appears to offer guardians the same protection from negligence actions. Under 755 ILCS  5/11a-23 (d), a guardian who acts or refrains from acting is not subject to criminal prosecution or any claim based upon lack of his or her authority or failure to act, if the act or failure to act was with due care and in accordance with law.

[2] The amendment, which was drafted by the Illinois Guardianship and Advocacy Commission, adopted the National Guardianship Association’s position with respect to surrogate decision making. 

[3]   The statute added the following language to the section that lists the duties of the person guardian, 755 ILCS 5/11a-17 (a-5):    (a-5) If the ward filed a petition for dissolution of marriage under the Illinois Marriage and Dissolution of Marriage Act before the ward was adjudicated a disabled person under this Article, the guardian of the ward’s person and estate may maintain that action for dissolution of marriage on behalf of the ward.