In Illinois, guardianship of an adult can be a healthy and proactive option for all involved. With that said, it’s important to understand that becoming a legal guardian can be a complex process, with many moving pieces for consideration. As you begin to weigh the potential or need for becoming a guardian of a loved one, one of the most important topics to address is the type of guardianship that might apply based on your unique circumstances — including limited guardianship and plenary guardianship.
Understanding Illinois Guardianship
Guardianship is a legal process in which a person assumes responsibility and decision-making power for an adult who can no longer make sound decisions regarding their health or property, as they are susceptible to fraud or undue influence.
Most commonly, guardianship is needed in situations where an adult has a mental, physical or developmental disability which makes them unable to make and communicate responsible decisions when it comes to their personal care or finances. A person may also seek guardianship of an elderly adult who may no longer be capable of looking after their own well-being or personal affairs.
In all cases, the need for a guardian is determined by the court, based on a thorough clinical evaluation and physician’s report of the adult, known as an adjudication of disability. The court will also need to make a finding that the proposed guardian is suitable.
In Illinois, a guardian can be appointed for an adult’s estate, person, or estate and person, depending on the court’s evaluation of their unique needs. Broadly speaking,
- A guardian of the estate is primarily responsible for handling financial matters on behalf of their ward, including managing income, assets, and property.
- A guardian of the person is responsible for caring for a ward’s physical and personal needs, including arranging medical services and treatment and ensuring that they have suitable living conditions.
- A guardian of the estate and person handles both sets of responsibilities described above. They are responsible for protecting their ward personally, while also managing money and property for his or her benefit.
Plenary Guardianship Vs. Limited Guardianship for Adults
As the Illinois Office of the State Guardian explains, Illinois laws are meant to encourage “maximum self-reliance and independence” for all adults. As a result, there is a lot of flexibility in our area for guardianship to be tailored to meet the needs and capabilities of the disabled person, based on their unique circumstances and abilities.
This standard creates an additional layer to consider for adult guardianships: the important distinction between plenary guardianship and limited guardianship.
Plenary guardianship may be used for the person, the estate, or both. It is used in situations where the person is found to be totally without capacity or understanding to make or communicate their own personal decisions and/or manage their financial affairs. In this event, a plenary guardian is given the power to make all personal and/or financial decisions for the disabled person.
Plenary guardianship is sometimes known as “full” guardianship, because it gives the guardian full decision-making rights for the protected person. Plenary guardianship is often considered to be the most restrictive form of guardianship for the ward, but it is also one of the most common types of adult guardianship used in Illinois.
Broadly, a limited guardian is granted the power to make only those decisions about personal care or finances which the court specifies, based on an individual’s mental, physical and adaptive limitations. The ward retains all power to make decisions which do not go to the legal guardian through direct court order.
Most commonly, limited guardianship is applied for those who lack some but not all capacity to make personal decisions or handle their estate. Limited guardianship can apply for guardians of the estate or guardians of the person, or both, as specified by the court.
Limited guardianship is intended to be less intrusive and more individualized than plenary guardianship; however, it tends to be used less often. In part, this is because limited guardianships are often more complex to implement and oversee than plenary guardianships. With a limited guardianship, all parties must understand and respect the limits of the order, which must differentiate between what a disabled person can and cannot do on their own.
Are There Any Alternatives to Guardianship?
Guardianship can become complex and costly in some cases, but it also allows the guardian to assume a significant amount of control over the ward. Becoming a guardian is also a very public process, which necessarily invites the courts to get involved in one’s private and personal affairs. As a result, families considering guardianship may often be encouraged to pursue alternative strategies, when appropriate.
Rather than pursuing a limited guardianship, for instance, many individuals may instead benefit from using one or more mechanisms that offer the ability to delegate certain responsibilities and decisions, including:
- Power of attorney. A power of attorney (POA) is a legal document that allows you to appoint another person to manage some or all of your affairs in the case that you are no longer able to do so on your own. There are different types of POA designations, including power of attorney for health care, power of attorney for finances, special power of attorney, and general power of attorney.
- Living wills. Also commonly known as an advanced directive, a living will is a document that allows you to provide a medical directive and dictate your end-of-life wishes, in the event that you become incapacitated and incapable of making or communicating your decisions.
- Health care surrogate. In Illinois, the Health Care Surrogate Act enables family members to make medical treatment decisions for people who lack the ability to make and communicate these decisions, and who do not have a valid health care power of attorney, living will, or mental health treatment preference declaration.
- Financial accommodations. With a special needs trust, a third party trustee has control of any assets placed in the trust, for the benefit of the disabled adult. There are usually strict limits on how trust assets may be used. Shared financial accounts can also provide a family member with oversight of how a disabled individual is regularly using or withdrawing funds.
An experienced and knowledgeable attorney can help you understand the nuances of all of these different decisions, and how they may or may not impact your consideration of guardianship.
Additional Types of Guardianship
As you research your options for adult guardianship in Illinois, you may come across other types of guardianship. Here’s a quick look at some designations and terms that are important to understand:
- Temporary Guardianship. Used in emergency or transitional situations, a temporary guardian is put in place to make sure that the person in need of guardianship receives care and protection.
- Testamentary Guardianship. A testamentary guardian is one named by a parent of a minor or adult with special needs, who is meant to be appointed as their child’s guardian in the event of the parents’ death. A testamentary guardian must still be appointed by the court, which may choose another guardian if the parents’ choice is found to be unsuitable or inappropriate.
- Successor Guardianship. A successor guardian is put in place if a previously appointed guardian passes away, resigns, or becomes incapacitated.
Considering Adult Guardianship in the Chicago Area?
Guardianship can be complicated. Consulting with a knowledgeable and empathetic attorney can help make this process easier. The insight of a legal professional can help you determine what kind of guardianship is appropriate for your circumstances, and empower you to navigate the court system with confidence and peace of mind.
Our firm can assist in matters relating to the guardianship of disabled adults in Chicago and the state of Illinois. Our compassion and experience in both guardianship of the person and guardianship of the estate can help you navigate this difficult transition, while allowing you protect your loved one’s health and finances at every step of the way.
Founded in 2009 and offering more than 20 years of combined experience, the attorneys and staff at the Law Offices of J. Jeltes work together to provide skilled, efficient, and affordable legal representation to individuals and families going through major life transitions.
We know that every situation is unique, and our skilled team will work with you to efficiently and effectively meet your goals, while bringing true compassion and meaningful experience to the table. Have any more questions about legal guardianship of an adult in Illinois? Curious about what it takes to get the guardianship process started? Don’t hesitate to get in touch to begin the conversation.