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A Practitioner's Guide To Adult Guardianship In Illinois
II. Definitions
A. Person with Disability
Section 11a-2 defines a person with disability (or "a disabled person") as 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.
The demographics of the Office of State Guardian may reflect the make-up of persons with disability in Illinois. The vast majority of Office of State Guardian wards are persons with developmental disability or mental illness. Relatively few are physically incapacitated, without some accompanying mental deterioration. Virtually no OSG wards were adjudicated simply as a result of gambling, idleness, debauchery or excessive use of intoxicants or drugs. In cases where the use of intoxicants or drugs is at issue, the ward usually has a specific diagnosed mental illness as well.
Prior to 1979, persons with disability were legally referred to as "incompetents," and guardianship for adults with disability was known as conservatorship. Other archaic terms were also used. Case law references may reflect the terms in use at a particular time. For purposes of clarity, the statutory terms now in effect will be used in this guide.
B. Adjudication of disability
This phrase describes both the guardianship process and the end result. A person for whom a guardian has been appointed has been legally adjudicated disabled. The legal mechanism used to obtain guardianship is also called an adjudication of disability. The probate court may exercise discretion in making guardianship appointments but is required to consider the preference of the alleged person with disability. Section 11a-12(d).
C. Plenary guardianship
The most common form of guardianship involves a plenary, or complete, adjudication of disability as to a person, an estate, or both. Persons found to be totally without capacity or understanding to make or communicate personal decisions or manage financial affairs, are given plenary person or estate guardians. The duties of person and estate guardians are respectively set out in Sections 11a-17 and 18.
D. Person guardianship
In determining a need for person guardianship, two prominent issues are medical decision making and residential placement. If a person is unable to give informed medical consent or make appropriate decisions about living independently in a residence, person guardianship should be considered.
E. Estate guardianship
Estate guardianship is necessary where a person, due to some disability, cannot manage financial affairs. However, courts are generally reluctant to appoint plenary estate guardians where estate assets are minimal. Pensions, public benefits and similar entitlements can be handled with representative payeeships. Bill paying assistance and money management assistance programs should also be considered. Small estate amounts can be collected and disbursed, without resort to estate administration. Some courts encourage the use of small estate affidavits under Section 25-2, and court supervised deposits of wards’ funds under Section 24-21 as alternatives to estate guardianship. However, many downstate judges are not at all reluctant to appoint estate guardians in small or minimal estates.
F. Limited guardianship
Perhaps the least understood and least used form of guardianship applies where a person lacks some, but not all of the capacity to make personal decisions or handle an estate. Under Section 11a-14(c), the appointment of a limited guardian is not a finding of legal incompetence. Limited guardianship is intended to be less intrusive and more individualized than plenary guardianship. Although guardianship is supposed to be used only to the extent necessitated by a person’s actual mental, physical and adaptive limitations (section 11a-3(b)), courts tend to create plenary guardianship rather than limited guardianship, even where limited guardianship may arguably be more appropriate.
One reason for the bias toward plenary guardianship is that the creation of an appropriate limited guardianship is complicated when compared to plenary guardianship. A physician must clearly differentiate between those things a person can and cannot do and must clearly describe these things to the court. The court must then determine which of these rights will be taken from the person with disability, considering the practical consequences for each. The limited guardianship must be understandable to the guardian, ward and third parties who may rely on the order. Not all guardianship practitioners, medical practitioners and courts are able to design an appropriate, useful limited guardianship order.
G. Petitioner, respondent, other parties
In any adjudication of disability, certain parties are always involved. The alleged person with disability is always known as the respondent. Section 11a-10 (e). The named petitioner is usually an individual or an individual acting in an authorized or official capacity who presents facts and circumstances which would lead a probate court to conclude that a named respondent requires some form of guardianship. For example "Joe Smith, a social worker at St. Joan of Arc Health Care Center" could be a named petitioner.
The Office of State Guardian is specifically authorized to petition for its own appointment as guardian under Section 30 of the Guardianship and Advocacy Act, ILCS 3955/30, but is not required to do so.
In many cases, a guardian ad litem is involved. The guardian ad litem’s role is discussed in greater detail in Section V, D. Other parties may include parents, spouses, children or other family members who are legally entitled to notice of the guardianship proceedings. Finally, the prospective guardian will be involved.
H. Probate
As an adjective, probate refers to that having to do with probate law or the probate court. As a noun, probate refers to proving before a judge the authenticity of a document, usually a will, and distributing property within the purview of the court. Traditionally, probate courts in Illinois have jurisdiction over the probating of wills, administration of decedents' estates, and cases involving minors and adults with disabilities.