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Practitioners Guide to Adult Guardianship in Illinois

A Practitioner's Guide To Adult Guardianship In Illinois

A PRACTITIONER’S GUIDE TO ADULT GUARDIANSHIP IN ILLINOIS is a collaborative effort of the staff of the Office of State Guardian of the Illinois Guardianship and Advocacy Commission, a state agency. As the largest public guardian in the United States, the Office of State Guardian handles personal or financial decisions for more than 5,000 disabled adults and manages nearly two million dollars in cash and personal property for persons with disability throughout Illinois.

This guide is intended to assist legal practitioners, social workers, medical practitioners, and the families of persons with disability. Assessing the need for adult guardianship and creating successful guardianship estates are difficult tasks. We have prepared these materials in an effort to assist those who must confront the need for adult guardianship. We stress that adult guardianship should be considered as a last resort, only after all other alternatives have been exhausted.

Citations to the Probate Act of 1975, 755 ILCS 5/1 1 et seq. are provided throughout this guide, and every effort has been made to check the accuracy of information. However, any views expressed in this work may be subject to contrary judicial interpretation. The Office of State Guardian recommends that questions concerning any legal or procedural aspect of adult guardianship be reviewed by an attorney familiar with guardianship practice in the jurisdiction in question.

This work is produced as a public service, and copies of these materials may be reprinted, with acknowledgment, without violation of applicable copyright laws. The Practitioner's Guide is also available on the Internet, at our World Wide Web Site. Visit the Commission's Web Site for helpful information about the Commission and its programs. Our Web address is http://www.Illinois.gov/gac/.

We would appreciate your feedback. If you have any comments or suggestions, or if you require additional information, please feel free to contact:

John H. Wank
General Counsel & Deputy Director of Programs
Illinois Guardianship and Advocacy Commission
160 North LaSalle Street, Suite S-500
Chicago, Illinois 60601
(312) 793-5908
January 2007

INDEX

  1. Statutory Basis
  2. Definitions/Probate Act of 1975
    1. Person with disability
    2. Adjudication of disability
    3. Plenary guardianship
    4. Person guardianship
    5. Estate guardianship
    6. Limited guardianship
    7. Petitioner, respondent, other parties
    8. Probate
  3. Guardianship Principles and Guidelines
    1. Sec. 11a-3(b): limited use of guardianship/alternatives
    2. Sec. 11a-5(a): active and suitable program of guardianship
    3. Sec. 31 of G.A.C. Act: OSG is guardian of last resort
    4. Sec. 11a-14.1: residential placement criteria
  4. Powers and Duties of Guardians
    1. Person guardians
    2. Estate guardians
    3. Temporary guardians
    4. Standby and Short-term Guardianship
    5. Powers of attorney compared with guardianship
    6. Health Care Surrogate Act powers
  5. The Guardianship Process
    1. Use of forms
    2. Use of Attorneys
    3. Costs
      1. Office of State Guardian petitions
      2. Non-Office of State Guardian petitions
    4. Guardians ad Litem
    5. Petitions for guardianship
    6. Doctor's Report
      1. Content requirements
      2. Signatures and dates
      3. Scrutinizing reports
    7. Summons
    8. Notice
    9. Due process
      1. Appointment of counsel
      2. Jury trial
      3. Independent experts
      4. Other rights
      5. Quantum of proof
    10. Uncontested cases
    11. Contested cases
    12. Orders of appointment
    13. Oaths and bonds
    14. Statement of rights
    15. Letters of office
    16. Termination/restoration of rights
  6. Emergency Situations
    1. Temporary guardianship
    2. Orders of protection
    3. Guardianship alternatives
  7. Ethical and Practice Considerations for Guardians
    1. National Guardianship Association standards
    2. Substituted judgment and best interest standards of decision making
    3. Personal accountability for guardians
  8. Using Guardianship For Specific Problems
    1. Personal Issues
      1. Provision of "informed consent" to health care providers
      2. Residential placement issues
      3. Consent to release of information
      4. Withdrawing & withholding life-supporting equipment, including food and hydration (right to die issues), and Do Not Resuscitate (DNR) orders
      5. Mental Health issues
        1. Psychiatric hospitalization of wards on voluntary and involuntary basis
        2. Forced psychotropic medication issues
        3. Use of electro-convulsive therapy (ECT) or experimental drugs or therapy;
      6. Abortion for a ward
      7. Dissolution of marriage
      8. Orders of protection
    2. Financial issues, where no pre-planning occurred
      1. Applications for public and private benefits, pensions, insurance
      2. Citations to discover and recover estate assets
      3. Basic estate management, bill paying, filing of income tax returns
      4. Inventory and accounting with Probate Court
      5. Execute contracts for residential and health care services
      6. Orders of protection
      7. Legal proceedings on behalf of ward
      8. Dissolution of marriage
      9. Conditional gifts
    3. List of Alternatives to Guardianship