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A Practitioner's Guide To Adult Guardianship In Illinois
IV. Powers and Duties of Guardians
A. Person guardians
A list of some of the practical issues that are often addressed by guardians of the person is included in Section VIII, below. The duties of a personal guardian, as described in Section 11a-17, are summarized as follows
Section 11a-17. Duties of personal guardian. (a) To the extent ordered by the court and under the direction of the court, the guardian of the person shall have custody of the ward and the ward’s minor and adult dependent children; shall procure for them and shall make provision for their support, care, comfort, health, education and maintenance and such professional services as are appropriate.... The guardian shall assist the ward in the development of maximum self-reliance and independence. The guardian of the person may petition the court for an order directing the guardian of the estate to pay an amount periodically for the provision of the services specified by the court order....
The Office of State Guardian supports mandatory filing of annual reports by all guardians. Under Section 11a-17(b), OSG will assist private guardians in the filing of reports, where requested by the guardian. Where directed to do so by a probate court, a person guardian is required under Section 11a-17(b) to file periodic reports discussing the following:
(1) the current mental, physical, and social condition of the ward and the ward’s minor and adult dependent children; (2) their present living arrangement, and a description and the address of every residence where they lived during the reporting period and the length of stay at each place; (3) a summary of the medical, educational, vocational, and other professional services given to them; (4) a resume of the guardian’s visits with and activities on behalf of the ward and the ward’s minor and adult dependent children; (5) a recommendation as to the need for continued guardianship; (6) any other information requested by the court or useful in the opinion of the guardian.
B. Estate guardians
A list of some of the practical issues that are often addressed by estate guardians is included in Section VIII, below. The duties of an estate guardian, as described in Section 11a-18, are summarized as follows:
(a) To the extent specified in the order establishing the guardianship, the guardian of the estate shall have the care, management and investment of the estate, shall manage the estate frugally and shall apply the income and principal of the estate so far as necessary for the comfort and suitable support and education of the ward, his minor and adult dependent children, and persons related by blood or marriage who are dependent upon or entitled to support from him, or for any other purpose which the court deems to be for the best interests of the ward, and the court may approve the making on behalf of the ward of such agreements as the court determines to be for the ward’s best interests. The guardian may make disbursement of his ward’s funds and estate directly to the ward or their distributee or in such other manner and in such amounts as the court directs.
(b) Upon the direction of the court which issued his letters, a guardian may perform the contracts of his ward which were legally subsisting at the time of the commencement of the ward’s disability. The court may authorize the guardian to execute and deliver any bill of sale, deed or other instrument.
(c) The guardian of the estate of a ward shall appear for and represent the ward in all legal proceedings unless another person is appointed for that purpose as guardian or next friend.
C. Temporary guardians.
A temporary guardianship appointment may be made by a court prior to the appointment of a plenary or limited guardian or pending an appeal in relation to such an appointment, upon a showing of necessity. Temporary guardianship is supposed to be linked to the welfare and protection of the person with disability or the person’s estate. Section 11a-4. 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. The court order creating the temporary guardianship shall state the actual harm identified by the court which necessitates temporary guardianship.
Cook County courts will not allow the filing of temporary guardianship petitions without the contemporaneous filing of a plenary or limited petition. However, some downstate courts routinely grant relief on temporary petitions, with no further action by guardianship petitioners.
Under Section 11a-4, a temporary guardian shall have all of the powers and duties of a guardian of the person or of the estate which are specifically delineated by court order. Consequently, orders appointing a temporary guardian must describe the specific power or duty conferred by the court. By operation of law, temporary guardianships expire within 60 days after the court appointment or whenever a plenary or limited guardian is appointed, whichever comes first. The Probate Act specifies that temporary guardianships may not be renewed for additional 60 day periods.
Temporary guardianship petitions are generally seen as emergency procedures invoked prior to a full adjudication of disability. In temporary guardianship cases, Probate courts have greater procedural latitude with respect to notice and other procedural safeguards. Accordingly, the Office of State Guardian takes the position that the use of temporary guardianship, without the procedural and evidentiary safeguards associated with a plenary or limited adjudication, is inappropriate if no true emergency exists. Where a true emergency exists, the Office of State Guardian argues in favor of as much notice to the respondent and other procedural due process as possible.
D. Standby and Short-term Guardianship
Standby Guardianship is used to provide continuity in the guardianship case if the primary guardian dies, becomes incapacitated or is no longer acting. The court creates the standby guardian upon the filing of a petition for the appointment, when a plenary or limited guardian is appointed. The court applies the same standards used in determining the suitability of a plenary or limited guardian in determining the suitability of a standby guardian. A court may not appoint the Office of State Guardian or a public guardian as a short-term guardian, without the written consent of the state or public guardian or an authorized representative.
Short-term Guardianship is used to enable a guardian to appoint an acting guardian for short periods. The guardian of a disabled person may appoint in writing, without court approval, a short-term guardian of the disabled person. The written instrument shall be signed by, or at the direction of, the appointing guardian in the presence of at least two credible witnesses at least 18 years of age, neither of whom is the person appointed as the short-term guardian. The person appointed as the short term guardian shall also sign the written instrument, but need not sign at the same time as the appointing guardian. A guardian may not appoint the Office of State Guardian or a public guardian as a short-term guardian, without the written consent of the state or public guardian or an authorized representative.
E. Powers of attorney compared with guardianship.
A power of attorney is a signed written instrument governing the relationship between a principal, the one creating the power of attorney, and an agent, a person designated by the principal to act on the principal’s behalf. Powers of attorney may be written to cover personal needs, financial needs, or both. The principal has the ability to tailor the document to include as many or as few areas of need as desired. Only the specific powers listed in the powers of attorney may be exercised by an agent.
Where a conflict exists between the powers listed in a power of attorney and a guardian, the power of attorney controls. The guardian will have no power, duty or liability with respect to any personal or financial powers or duties given an agent under a power of attorney. Sections 11a-17 ( c ) and 11a-18 ( e ).
In addition, Section 2-7 of the Illinois Power of Attorney Act provides that an adjudication of disability of the person who created a power of attorney should not affect the ability of an agent to exercise authority under the power of attorney. However, where a power of attorney is ambiguous or where the agent fails to act under the terms of the written power of attorney, a court may direct a guardian to exercise powers included in the power of attorney. 755 ILCS 45/2-10.
F. Health Care Surrogate Act powers
The Health Care Surrogate Act, 755 ILCS 40/1, et seq. provides an additional means of making health care determinations on behalf of an incapacitated person. 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. No guardianship appointment is required.
The surrogate decision maker may act without court appointment, and is legally authorized to make decisions to forego life sustaining treatment, where a doctor finds that a patient lacks decisional capacity and a qualifying medical condition is present. This law may be invoked where no guardian has been appointed, and no power of attorney or living will have been executed.
Similarly, a guardian may act as a surrogate decision maker without court order, to forego life-sustaining treatment for the ward. Section 11a-17(d). Consequently, guardianship may be a means of invoking the numerous benefits of the Health Care Surrogate Act where no family or friends are available to render a health care decision.