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A Practitioner's Guide To Adult Guardianship In Illinois

III. Guardianship Principals and Guidelines

A. Section 11a-3(b): limited use of guardianship and consideration of appropriate guardianship alternatives

Guardianship is to be utilized only as is necessary to promote the well-being of a person with disability and to protect against neglect, exploitation, or abuse, and to encourage development of maximum self-reliance and independence. Guardianship shall be ordered only to the extent necessitated by the individual’s actual mental, physical and adaptive limitations. Section 11a-3(b). Many statutory alternatives to guardianship exist. Where a person with disability has executed a proper Living Will or Power of Attorney for Health Care, or where a surrogate decision-maker under the Health Care Surrogate Act may be found, a personal guardian may not be needed. Similarly, where an adequate trust or representative payeeship is in place, estate guardianship may be unnecessary.

Guardianship should not be considered in a vacuum. Alternatives should be explored. A person may meet the clinical or legal definition of disability, but still not benefit from having a guardian, and thus render guardianship futile. Before petitioning for guardianship or accepting a guardianship case, one should determine how guardianship is intended to benefit an alleged person with disability. If no good reasons for guardianship are apparent, alternatives must be explored. The Guardianship and Advocacy Act, 20 ILCS 3955/33 indicates that the State Guardian may offer guidance and advice for the purpose of avoiding the need for appointment of a guardian. Courts also look for obvious signs of conflicts of interest by examining the relationships between the respondent, the petitioner, and the proposed guardian, if different from the petitioner.

B. Section 11a-5(a): active and suitable program of guardianship

The requirements for serving as guardian are minimal. Any U.S. resident who is of sound mind, has not been adjudicated disabled, is over age 18, and who has not been convicted of a felony is eligible to be a guardian.

In addition to the foregoing, a party must also be capable of providing an active and suitable program of guardianship for the person with disability. Although active and suitable programs of guardianship are not specifically defined in the Probate Act, courts tend to look for at least a basic plan of guardianship prior to appointing a prospective guardian.

C. Section 31 of Illinois Guardianship and Advocacy Commission Act: Office of State Guardian is guardian of last resort

Section 31 of the Guardianship and Advocacy Act, 20 ILCS 3955/31, provides that the Office of State Guardian will not be appointed guardian if another suitable person is available and willing to accept the guardianship appointment. In all cases where a court appoints the State Guardian, the court shall indicate in the order appointing guardian as a finding of fact that no other suitable and willing person could be found to accept the guardianship appointment. This requirement is waived where the Office of State Guardian petitions for its own appointment as guardian.

Petitioners must take great care in ensuring that every possible guardianship candidate is considered, and that a public guardian is not appointed merely for the convenience of a court or the petitioner. Office of State Guardian attorneys will contest or seek to vacate guardianship orders naming OSG as guardian where a suitable and willing alternative is available.

D. Section 11a-14.1 of the Probate Act: residential placement criteria

In August 1997, more detailed placement criteria were implemented. The new rules created criteria to determine residential placements for adult wards, including a requirement that the guardians consider the wishes of a ward unless harm to the ward or to the ward’s estate ensues. When the preferences of the ward cannot be ascertained or where they will result in substantial harm to the ward or to the ward’s estate, the guardian makes decisions that are in the best interests of the ward. The law also exempts state and public guardians from petitioning probate courts to change residential placement, but requires these guardians to follow all other new guidelines.

Guardians are prohibited from removing the ward from his or her home or sepa rating the ward from family and friends unless such removal is necessary to prevent substantial harm to the ward or to the ward’s estate. Guardians have a duty to investigate reasonable residential alternatives. Placements are to be monitored on an ongoing basis to ensure continued appropriateness and pursue alternatives as needed.