Guardianship
Guardianship and Legal Alternatives
POWERS OF ATTORNEY, SURROGATE DECISION MAK- ERS AND OTHER ALTERNATIVES TO GUARDIANSHIP
Guardianship can be the most restrictive alternative available to a person in need of personal or financial assistance. Guardian- ship always means the involvement of a court, with the likelihood of a public examination of one's private affairs, and the costs as- sociated with litigation and on-going compliance with court di- rectives and supervision. All possible alternatives should be ex- plored before instituting guardianship proceedings. Competent medical and legal professionals, social workers, caretakers, fami- ly and friends should consult and agree on a suitable course of action whenever possible.
The use of representative or protective payeeships, financial counseling and bill paying assistance programs, living trusts, homemaker and other in-home support programs, and other advo- cacy services may avoid the need for guardianship.
WHAT IS A GUARDIAN?
A guardian is a person, institution or agency appointed by the Probate Court to manage the affairs of another, called the ward.
WHO MAY HAVE A GUARDIAN APPOINTED TO MAN- AGE HIS/HER AFFAIRS?
The law presumes that an adult eighteen years of age or older is capable of handling his/her own affairs. A guardian may be appointed to serve as a substitute decision maker if a person is disabled because of (1) mental deterioration, (2) physical inca- pacity, (3) mental illness, or (4) developmental disability. The disability must prevent the person from making or communi- cating responsible decisions about his/her personal affairs. A guardian may also be appointed if, because of "gambling, idle- ness, debauchery, or excessive use of intoxicants or drugs", a per- son spends or wastes his/her estate so as to expose himself/herself or his/her family to want or suffering. In either case, guardian- ship may be necessary to protect the person and to promote the interests of others, such as service providers or creditors.
WHO MAY ACT AS A GUARDIAN?
Any person at least 18 years of age who is of sound mind, has not been convicted of a felony, is a resident of the United States and is acceptable to the court may be named guardian of the person and estate of an adult with disabilities.
Any agency, public or private, may serve as guardian of the person or estate, if the court finds that it is capable of providing an active guardianship program. The court shall not appoint as guardian an agency which is providing residential services to the person with disabilities. This is to ensure against any conflict of interest.
A banking institution may be appointed guardian of the estate but not guardian of the person.
WHAT TYPES OF GUARDIANSHIP ARE AVAILABLE UN- DER ILLINOIS LAW?
There are several types of guardianship available under the Illinois Probate Act. It is important that all available options be considered to determine the appropriate form of guardianship for a specific person with disabilities. In each case, consideration should be given to requesting either limited or plenary guardian- ship. Limited guardianship is used when the person with disabili- ties can make some, but not all, decisions regarding his/her per- sonal care and/or finances.
The basic forms guardianship can take are as follows:
A. Limited Guardianship - used when the person with disa- bilities can make some, but not all, decisions regarding his/her person and/or estate. "Guardianship shall be or-dered only to the extent necessitated by the individual's mental, physical and adaptive limitations." A limited guardian makes only those decisions about personal care and/or finances which the ward cannot make. The powers of a limited guardian must be specifically listed in the court order. The ward retains the power to make all other decisions regarding his/her person or estate. Limited guardianship may be used to appoint a limited guardian of the person, a limited guardian of the estate, or both.
Plenary Guardianship - used when the individual’s mental, physical and adaptive limitations necessitate a guardian who has the power to make all important decisions regard- ing the individual’s personal care and finances. Plenary guardianship may be used for the person, the estate, or both.
Guardianship of the Person - used when a person, because of his disability, lacks sufficient understanding or capacity to make or communicate responsible decisions regarding the care of his person. The guardian of the person makes decisions regarding the support, care, comfort, health, edu- cation, maintenance, and professional services (such as educational, vocational, habilitation, treatment and medi- cal services) for the person under guardianship who is called a ward.
Guardianship of the Estate - used when the person because of his disability is unable to manage his estate or financial affairs. A guardian of the estate makes decisions about management of the ward's property and finances.
Temporary Guardianship - used in an emergency situation. Temporary guardianship can last no longer than 60 days, and is a means to assure that the person who evidences need for guardianship receives immediate protection.
Successor Guardianship - used upon the death, disability, or resignation of the initially appointed guardian, when guardianship is still needed.
G. Testamentary Guardianship - used by parents of a person with disabilities and designates, by will, a person who as- sumes the guardianship appointment upon the death of a parent. The designated person must still be appointed by the court before he/she can serve as guardian. The court will consider the designated person but is not bound by the testamentary designation. It can appoint someone else if the proposed guardian is found to be inappropriate.
H. Standby Guardianship– used to provide continuity in the guardianship case if the primary guardian dies, becomes inca- pacitated 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. The standby guardian shall have au- thority to act as guardian without direction of court for a period of up to 60 days. Within that 60 days, the standby guardian shall file or cause to be field a petition for the appointment of a guardian. A court may not appoint the Office of State Guardian or a public guardian as a standby guardian, without the written consent of the state or public guardian or an authorized repre- sentative.
I. Short-term Guardianship—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 approv- al, a short-term guardian of the disabled person. The written instrument shall be signed by, or at the direction of, the ap- pointing guardian in the presence of at least two credible wit- nesses 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.
The duration of the appointment cannot exceed a cumu- lative total of 60 days in any 12 month period. A guard- ian 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 au- thorized representative.
This content is adapted from https://www.illinois.gov/sites/gac/OSG/Documents/GuideAdultGuardianship2011.pdf