If you’re weighing the possibility of becoming guardian to an adult loved one here in Illinois, then there are several important concepts to understand — including the legal definition of disability.
In Illinois, guardianship may be considered as a mechanism for caring for an adult who can no longer take care of themselves. A common example is a senior parent with Alzheimer’s or dementia who can no longer make sound decisions or take care of important financial matters on their own. In other cases, guardianship may be considered for adults with physical or developmental disabilities who can live somewhat independently, but who may require a moderate to significant amount of daily assistance.
In both of these scenarios, the adult may constitute a person with a disability, pending an adjudication of disability in the Illinois probate courts.
“Person With a Disability,” Defined
Here in Illinois, assuming guardianship of an adult or minor is a legal process, and must be carried out in the probate courts. In Illinois, the court will only consider guardianship for a person who meets the legal standard for a person with a disability, defined as a person 18 years of age or older who:
- Because of mental deterioration or physical incapacity is not fully able to manage their person or estate
- Is a person with mental illness or a person with a developmental disability and who because of this mental illness or developmental disability is not fully able to manage his or her person or estate, or
- Because of gambling, idleness, debauchery or excessive use of intoxicants or drugs, so spends or wastes their estate as to expose themselves or their family to want or suffering
The most important consideration? As the Illinois Guardianship & Advocacy Commission notes,“the disability must prevent the person from making or communicating responsible decisions about his or her personal affairs.” In such a situation, a guardianship may be considered in order to protect the individual, and “promote the interests of others, such as service providers or creditors.”
Adjudication of Disability
Typically, in order for a guardian to be appointed, an interested person, such as a family member, must file a petition with the courts. At this point, the courts will commence an adjudication of disability, which refers to both the guardianship process and the end result.
Along with a petition for guardianship, the interested person must file a report from a physician evaluating the physical and mental capacity of the alleged disabled adult. The individual for whom a guardian may be appointed (“alleged disabled person”) then has the opportunity to respond, working with an attorney, or a guardian ad litem appointed by the courts. A guardian ad litem is also responsible for keeping the alleged disabled person informed of their rights, and conducting their own investigation into the appropriateness of guardianship.
Whether contested or uncontested, guardianship proceedings culminate in a hearing, where evidence about the alleged disabled person’s health, mental faculties, finances, housing, and lifestyle are presented. The court will review all the information available, including the physician’s report and the testimony of any witnesses or the guardian ad litem.
In order to “adjudge a person to be a person with a disability,” the court must find that it has been demonstrated “by clear and convincing evidence” that the alleged disabled person meets the qualifications for disability described above. If the court finds that the individual meets the standard to be legally declared disabled, then a guardian may be appointed.
Types of Guardianship In Illinois
Illinois law makes clear that guardianship,
“shall be utilized only as is necessary to promote the well-being of the person with a disability, to protect him from neglect, exploitation, or abuse, and to encourage development of his maximum self-reliance and independence. Guardianship shall be ordered only to the extent necessitated by the individual’s actual mental, physical and adaptive limitations.”
As a result, guardianships can be tailored to meet the needs of the individual, based on their unique circumstances.
Broadly speaking, the three primary types of guardianship used in Illinois are guardian of the person, guardian of the estate, and guardian of the estate and person.
A guardian of the person is responsible for caring for physical needs and care of the person in their charge, known as the ward. This typically includes arranging medical services and treatment and ensuring that the ward has suitable living conditions. A guardian of the person may be appointed if the court finds that, because of disability the ward “lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the care of his person.”
If it has been demonstrated by clear and convincing evidence that an individual is unable to manage their estate or financial affairs because of a disability, then a guardian of the estate may be appointed. A guardian of the estate is responsible for handling financial matters for the benefit of their ward, including managing their income, assets, and property.
A guardian of the estate and person handles both sets of responsibilities — that is, protecting the individual’s health and safety while also managing money and property on their behalf.
In all of these arrangements, the court may also determine the scope of the guardianship. Generally speaking, a limited guardianship is applied for those individuals who lack some but not all capacity to make personal decisions or handle their estate. In such cases, the guardian’s duties and powers are limited to those specified by the court, and the ward will retain all power to make decisions which do not go to the legal guardian through a direct court order.
A plenary guardianship, also called a “full” guardianship, is typically applied in circumstances where the individual is adjudicated to be “totally without capacity,” or in cases in which “the court finds that limited guardianship will not provide sufficient protection for the person with a disability, his or her estate, or both.” Broadly speaking, a plenary guardian is given the power to make all personal and/or financial decisions for the person with a disability.
A temporary guardian may be appointed in situations where there must be decisions made regarding the immediate welfare and protection of the alleged person with a disability, even before an adjudication of disability is completed. A temporary guardian’s powers and duties are limited to those specifically enumerated by a court order.
Alternatives to Guardianship
As the Office of the State Guardian puts it, guardianship should always be considered as “a last resort” — since it is a mechanism by which “a person’s legal rights are taken away for a sound and necessary purpose.” Guardianship should never be used “in a retaliatory manner” or “as a convenience for a health care provider or family member.”
Accordingly, there are many alternatives to guardianship that should be considered before undertaking this complex and intrusive process.
For example, a power of attorney is a legal tool that allows you to appoint another person to manage some or all of your affairs in the event that you become incapacitated or are no longer able to make or communicate decisions on your own. There are different types of POA designations which grant your chosen agent the ability to handle different types of decisions — including the power of attorney for health care and the power of attorney for finances.
In addition, Illinois has other legal mechanisms that can minimize the need for a formal guardianship. A living will or advanced directive allows you to provide a medical directive and dictate your end-of-life wishes, in the event that you become incapacitated. The Illinois 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.
Finally, the Illinois Guardianship & Advocacy Commission also recommends considering less intrusive forms of personal and financial help that can help “avoid the need for guardianship,” including “protective payee ships, financial counseling and bill paying assistance programs, living trusts, homemaker and other in-home support programs, and other advocacy services.”
Interested in Learning More About Guardianship in the Chicago Area?
From the initial adjudication of disability to understanding the duties and powers of a guardian, guardianship matters can be incredibly complicated and emotional. Consulting with a knowledgeable and empathetic attorney can help make this process easier. As you move forward, the insights and knowledge of an experienced legal professional can help empower you to navigate the court system with confidence and peace of mind.
Our firm can assist in matters relating to the guardianship of 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 face 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.
