The Guardianship Process
A Practitioner's Guide To Adult Guardianship In Illinois
V. The Guardianship Process
A. Use of forms
In most counties, necessary forms used in the guardianship petitioning process are available from the probate court clerk. All probate courts prefer that their own forms be used.
The following is a list of forms typically used in a guardianship case (Cook County form designations are noted):
Order Appointing Guardian ad Litem CCP-209
Guardianship Summons CCP-201
Notice of Rights
*Notice of Motion CCG-3A
Order Appointing Plenary Guardian CCP-204, or
*Order Appointing Limited Guardian CCP-207
Statement of Right to Discharge or Modify Guardianship CCP-214
Oath and Bond No Surety CCP-313, or
*Oath and Bond Surety CCP-312
*Petition for Temporary Guardian CCP-202
*Order Appointing Temporary Guardian CCP-203
*Petition to Waive Fees - Indigent and Order (no preprinted form)
*these forms are used only where necessary.
B. Use of attorneys by petitioners
Although an individual seeking guardianship for another may do so without the use of an attorney, the advice of legal counsel may be beneficial. The involvement of an attorney can be helpful where the alleged person with disability objects to guardianship or where complicated personal or financial issues are presented to the court. In addition, an experienced attorney may be valuable in weighing the sufficiency of legal evidence necessary for guardianship adjudication, and in preparing a guardianship case in a way that conforms to local standards of practice.
Where a person opts to petition for guardianship without representation by legal counsel, a regional Office of State Guardian attorney or a legal assistance agency may be consulted, in order to learn about specific practices or requirements in a particular court. Local court rules and procedures should be available at the office of the Presiding Judge of any jurisdiction. In addition, the clerk of the court should be consulted to obtain copies of local court forms, and to learn about the scheduling of guardianship cases.
The Office of State Guardian will provide callers with referrals for attorneys in a number of jurisdictions who practice in the adult guardianship area. In addition, the Illinois State Bar Association and the Chicago Bar Association, as well as many local bar associations, provide lawyer referral services.
A respondent facing guardianship adjudication has the right to a court appointed attorney. See Section V I, below.
1. Office of State Guardian petitions
Section 11a-13(b) of the Probate Act provides that no costs shall be assessed or charged against the Office of State Guardian by any public officer in any proceeding for the appointment of a guardian.
2. All other petitions
Fees in adult guardianship cases are generally paid by the petitioning party, or, subject to court approval, from the estate of the person with disability. Petitioning costs in Cook County are $50.00 for filing for person only guardianship, $70.00 for estates up to $15,000.00 and $105.00 for estates in excess of $15,000.00. Sheriff's fees are $23.00 plus $.40 per mile for service of the petition and guardianship summons on the respondent. Surety bonds for estate assets (required only in estate guardianships) start out at $50.00 per year for $8,000.00 of coverage. Surety bonds must be obtained from authorized writers.
In addition, the expense of a guardian ad litem typically runs in the $200 400.00 dollar range for routine cases. However, not all guardianship cases require a guardian ad litem. Fees may also be incurred for expert witnesses or appraisals of property, but usually only in contested cases. Attorney and guardian ad litem fees are typically approved by the court, and may be paid from the estate of the person with disability. In cases of indigence, attorney and guardian ad litem fees may be assessed against the petitioner, if the court approves. Section 11a-108 of the Probate Act details the court’s role in considering fee issues.
D. Guardians ad Litem
Guardians ad litem are expected to scrutinize the guardianship petition and Doctor’s report and gauge the appropriateness of an adjudication of disability. In that sense they act in the best interest of the alleged person with disability rather than as an advocate. Section 11a-10 indicates that a guardian ad litem is supposed to report to the court concerning the respondent’s best interests. Attorneys for petitioners in adjudication proceedings should understand the different roles of guardians ad litem, and expect the guardian ad litem to adopt the role outlined in Section 11a-10.
In Cook County, protocol requires the appointment of a guardian ad litem in all estate guardianships, and in person guardianships which might result in a physical intrusion (surgery or forced medication) or a denial of rights (involuntary placement or objection to guardianship by the respondent). Most downstate courts require the appointment of guardians ad litem in all cases except temporary guardianships (see Section VI, "Emergency Situations,? below), regardless of whether estate guardianship is at issue. The Probate Act does not require the appointment of a guardian ad litem where, in the discretion of the court, it is determined that an appointment is not necessary for the protection of the respondent or for a reasonably informed decision on the guardianship petition. Section 11a-10(a).
If the guardian ad litem is not a licensed attorney, he shall be qualified, by training or experience, to work with or advocate for the developmentally disabled, mentally ill, physically disabled, the elderly, or persons disabled because of mental deterioration, depending on the type of disability that is alleged in the petition. Section 11a-10(a).
Guardians ad litem typically visit the respondent, review available medical evidence (including the physician’s report), inform the respondent of statutory rights, and form an opinion as to the need for and extent of guardianship. Guardians ad litem may consult with experts qualified to work with persons with developmental disability, mental illness, physical disability or mental deterioration. Section 11a-10.
The guardian ad litem is required to attempt to elicit the respondent’s position concerning the adjudication of disability, the proposed guardian, any proposed change in residential placement, any changes in care that might result from the guardianship, and any other area of inquiry deemed appropriate by the court. At or before the hearing, the guardian ad litem must file a written report detailing his or her observations of the respondent, the responses of the respondent to any of the inquiries detailed herein, the opinion of the guardian ad litem or other professionals with whom the guardian ad litem consulted concerning the appropriateness of guardianship, and any other material issue discovered by the guardian ad litem. The guardian ad litem shall appear at the hearing and testify as to any issues presented in his report.
E. Petitions for guardianship
The guardianship petition is a statement, sworn to by the petitioner, that alleges a need for the appointment of a guardian for an alleged person with disability. The reason for guardianship, as stated in the petition, should conform to the actual diagnosis given in the physician’s report, and should also conform to the basic statutory criteria.
Acceptable statutory criteria include mental deterioration, physical incapacity, developmental disability or mental illness and an inability to manage personal or financial affairs due to such deterioration, incapacity, disability, or illness. Section 11a-2. A person’s status as elderly, frail, developmentally disabled or mentally ill, without proof of an inability to manage affairs, does not meet the statutory test.
Known relatives of the respondent should be listed as an Exhibit A to the petition, along with the names and addresses of any previously appointed guardians or agents acting under powers of attorney. Section 11a-8. Although friends of the respondent have no statutory right to notice, they should be afforded an opportunity to be heard, to demonstrate fairness and thoroughness to the court, if for no other reason.
Once filed, guardianship petitions may not be dismissed or withdrawn without leave of court. Section 11a-8. The allegations stated on the face of the petition necessarily suggest that a person is disabled and needs the assistance of a guardian. Courts are often reluctant to let a case be withdrawn without a showing of a change in circumstances or a written statement from a doctor explaining why guardianship is no longer needed. Before a guardianship petition is filed, care must be taken to ensure that a respondent meets the legal standard for guardianship and would benefit from guardianship.
F. Doctor’s Report
As medical reports are the foundation of guardianship petitions, careful scrutiny of the report is essential. In uncontested matters, the person who prepared the report is routinely excused from testifying. Section 11a-11(d). Accordingly, a report is often the major evidence considered by the court.
Section 11a-9, requires four main criteria to be discussed by the physician:
- the nature and type of disability, and an assessment of how such disability impacts on the ability of the respondent to make decisions or to function independently
- an analysis and results of the respondent’s mental and physical condition, including educational condition, adaptive behavior and social skills;
- an opinion regarding the need for, type, and scope of guardianship recommended; and
- a recommendation regarding the most suitable living arrangement.
- Signatures and dates
Reports must bear the name of at least one physician (an M.D. or D.O. licensed to practice in Illinois), but may be prepared by nurses, social workers or other persons, so long as they also sign. In addition, the report should include a short statement of the certification, license or other credentials which qualify any evaluators who prepared the report. Any report dated three months prior to the date of filing the petition is inadmissible and must be updated or redone. Section 11a-9(a)(2). After adjudication, the report is held by the clerk, but separated from the rest of the court file unless released by the court. Section 11a-9(c).
- Scrutinizing reports
In reviewing a physician's report, consider the following:
- Does the report correctly state the respondent’s name in the caption and elsewhere on the form?
- Is the physician's name clearly legible?
- Is the date of examination over three months old as of the date the petition will be filed?
- Is the disability of the alleged person with disability described, rather than a mere statement of diagnosis of medical problems? For example, "Down’s Syndrome, resulting in moderate developmental disability," is an appropriate diagnosis for the purposes of an adjudication of disability. An inappropriate diagnosis would be "acute asthma," or "insanity."
- Is the functioning level of the person adequately described? This statement should be descriptive of the person, rather than a bare statement that the person is incapable. One should be able to tell whether the person is comatose, conscious but nonverbal, able to participate in recreational or job programs, or able to live independently with support services.
- Does the statement both state a conclusion, and give facts or observations upon which the conclusion is based? It should state the physician’s opinion about the person’s decision making capacity and the extent of the respondent’s impairment. A statement that guardianship is necessary, without indicating why, may be inadequate.
- Is the report signed by the physician?
- Is the physician's address and telephone number clearly stated?
- Have all others who contributed to the report signed it? Often, exceptional reports are prepared by nurses, social workers, or other care providers. If the doctor relies upon the written statements of others, the names of those persons should appear on the face of the form.
- If the answer to any of the above questions is "no," confer with the physician or facility staff or referral source to gather necessary information and revise the report accordingly.
A guardianship summons is the legal notice physically served upon the respondent which advises of the time, date, and place of the guardianship hearing, the right to appointed counsel, the right to a jury trial, the right to request the appointment of an expert witness and other legal rights. The form of the notice is mandated by Sections 11a-10(e). The summons and a copy of the guardianship petition must be served not less than 14 days before the guardianship hearing. 11a-10(e).
An adjudication of disability cannot occur without proof of personal service on the respondent. Substitute service of a summons is not acceptable, despite its practicality. For example, the sheriff cannot leave a copy of the petition and summons with a nurse, social worker, or family member when the respondent is in a coma. A summons is usually served by the office of the sheriff of the county in which the respondent lives, but may be served by any individual over age 18 who is not a party to the guardianship proceeding.
A legal notice of motion and a copy of the petition must be sent by the petitioner to all persons whose names and addresses appear on the petition, at least 14 days before the hearing date. Section 11a-10(f). Notice need not be sent to the respondent (summons and a petition will be served) but the proposed guardian should get notice. The notice simply explains that a guardianship proceeding has been scheduled for a particular time and place, and advises that parties may appear and participate in the adjudication of disability.
I. Due process
Certain procedural safeguards are included in the adjudication process. The appointment of a guardian ad litem may provide the best oversight of guardianship proceedings. The guardian ad litem is required to perform certain statutory functions intended to protect the rights and interests of the respondent (see Section V D, above).
The Guardianship and Advocacy Commission favors the appointment of a guardian ad litem in all cases where OSG is appointed guardian or where OSG petitions for guardianship. However, in cases where a guardian ad litem is waived or refused by the court, other protections remain. Any or all of the following should be considered.
- Appointment of counsel
A court may appoint an attorney to represent the respondent, if the court finds that the interests of the respondent will be best served by the appointment. A court must appoint counsel when the respondent requests representation or when the respondent takes a position averse to that of the guardian ad litem.
Requests for counsel by a respondent may be made by any oral or written means, either before or at the guardianship hearing. Section 11a-10(b), 11a-11(a)
- Jury trial
A respondent is entitled to a 6-person jury. The jury will determine the issue of disability after hearing evidence. 11a-11(a)
- Independent experts
A respondent may request that the court appoint independent medical, psychiatric or other evaluations to attempt to refute allegations made by the experts retained by the petitioner. 11a-118
- Other rights
Respondents are absolutely entitled to appear at guardianship hearings, cross examine witnesses, and present evidence. Guardianship hearings may be closed to the public at the request of the respondent, guardian ad litem, or appointed counsel. 11a-11(a)
- Quantum of Proof
The quantum of proof in contested guardianship proceedings is sometimes hard to determine. The Commission believes that most courts would follow a clear and convincing standard, although no particular standard is articulated in the law.
J. Uncontested cases
In an uncontested case, the court will focus on the physician’s report, and may even read the report into the court record. In many courts, the testimony of a witness familiar with the respondent, usually a person from the respondent’s residence or care facility, will testify concerning the need for guardianship.
If a guardian ad litem is appointed, a brief oral report discussing issues of importance may be made. The court will then rule, after considering the factors set out in Section 11a-11(e):
- the nature and extent of the respondent’s general intellectual and physical functioning,
- the extent of the impairment of the respondent’s adaptive behavior if the person is developmentally disabled, or the nature and severity of the person’s mental illness in the case of a person with mental illness,
- the understanding and capacity of the respondent to make and communicate responsible personal decisions,
- the capacity of the respondent to manage an estate and financial affairs,
- the appropriateness of proposed and alternate living arrangements,
- the impact of the disability upon the respondent's functioning in the basic activities of daily living and the important decisions faced by the respondent or normally faced by adult members of the respondent's community, and
- any other appropriate area of inquiry.
K. Contested cases
If the respondent appears and objects or if another objector steps forward, the court may set the case over to a future date for a contested hearing or appoint counsel for the respondent. Section 11a-10(b). The respondent is entitled to legal representation, a 6-person jury and other due process, and is required to be present at the guardianship hearing absent a showing that the respondent refuses to be present or will suffer harm if required to attend. Section 11a-11(a). In practice, the respondent often does not appear at the guardianship hearing.
L. Orders of appointment
Illinois law creates no preferences or priorities as to whom is appointed guardian for a person with disability, other than the requirement that the court give due consideration to any preference of the respondent. Section 11a-12(d). Rather than affinity or the degree of relationship to the ward, the criterion used in selecting a guardian is the prospective guardian’s capability of providing an active and suitable program of guardianship for the ward. Section 11a-5(a).
M. Oaths and Bonds
Guardians are required to file an oath or a bond. Section 12-2. Where a guardian of the person only is appointed, many courts routinely waive the filing of a bond, and a simple oath signifying the guardian’s acceptance of the office will suffice. Estate guardians are generally required to file either surety or non-surety bonds, and the courts have very little discretion in waiving or reducing bonds. Section 12-6.
For example, many courts will generally require a bond even where the parent of an adult person with developmental disability is serving as guardian to oversee the investment of an inheritance. The bond amount is set by Section 12-5 at one and one- half times the value of the personal estate if a surety company acts as a surety.
N. Statement of rights
After an adjudication of disability, the person with disability receives a statement which advises of statutory rights to modify or revoke the adjudication of disability. Section 11a-19. In Cook County, the statement is mailed by the court after the adjudication of disability.
O. Letters of office
Letters of office, which are certified proof of the guardian’s appointment, are usually issued by the Probate clerk within a day or two of the appointment and are mailed to the petitioner’s attorney or to the appointed guardian.
P. Termination/restoration of rights
Guardianship may be modified or terminated at any time under Section 11a-20,21, and guardians may be removed for the causes stated in Section 23-2. Unless revoked by the court, guardianship is a lifetime proposition, and survives the death of a guardian. Section 11a-15.