Adult guardianship is a legal process in which an adult is adjudicated legally disabled incapacitated by reason of mental disability or illness and the terms of the personal or financial guardianship are set. In an adult guardianship hearing, the Court determines whether and for what purposes it will appoint a personal and/or financial guardian for an alleged disabled adult.
There are two main parties in a petition for guardianship — the petitioner, who seeks to establish the guardianship, and the respondent (allegedly disabled person). While many guardianship petitions in Illinois go uncontested, others will require the Court to evaluate evidence presented both for and against the guardianship and evaluate whether a guardianship should be established, and what matters it should cover.
Keep reading to explore what you can expect to face during the course of an adult guardianship hearing in Illinois:
How Is A Guardianship Established in Illinois?
There are two types of guardianships in Illinois — guardianship of the estate, and guardianship of the person. The guardian of the estate is responsible for management of the ward’s financial affairs, while the guardian of the person is responsible for non-financial decisions. In addition, a guardianship may be either limited or plenary. A limited guardian is only responsible for making very specific and limited types of decisions, as laid out in a Court order. A plenary guardian is generally responsible for all major decisions regarding the respondent’s person, estate, or both.
The procedures for obtaining a court-appointed guardianship are set forth in Section 11a of the Illinois Probate Act (full text available here). Each county circuit court may also have its own practices or rules. For example, in Cook County, the rules are found in Part 12 of the general rules of practice for the Circuit Court of Cook County (available here).
Broadly speaking, the petitioner’s first step in establishing a guardianship is to file a petition for adjudication of disability. As part of this petition, the petitioner must obtain a physician’s report stating that the respondent is disabled, and why he or she requires a guardian. The report must be signed by a licensed physician, and must provide the following information:
- a description of the nature and type of the respondent’s disability, and an assessment of how the disability impacts the individual’s ability to make decisions and function independently;
- an analysis and results of any evaluations of the individual’s mental and physical condition and any other assessments that might affect the Court’s decision;
- an opinion by a licensed physician regarding whether guardianship is needed, and the reasons for guardianship;
- a recommendation as to the most suitable living arrangement and any relevant treatment plans;
- the signatures of all persons who performed the evaluations upon which the report is based, one of whom shall be a licensed physician and a statement of the certification, license, or other credentials that qualify the evaluators who prepared the report
This report should be as thorough as possible, and should be an accurate reflection of both the respondent’s limitations and their skills and abilities. The petitioner is responsible for having the report prepared, and it may be necessary for professionals other than the individual’s physician to offer information that will provide a complete picture of the abilities and disabilities the Court should consider. The Court will generally set a hearing within 30 days of the filing of the petition.
Representation and the Guardian Ad Litem
Before the hearing, the Court may appoint a guardian ad litem to meet with the respondent. Guardians ad litem are private, court-appointed attorneys or other qualified individuals charged with reviewing the guardianship petition and physician’s report and reporting to the Court regarding the appropriateness of a guardianship.
Although the process described in the Illinois Probate Act anticipates the appointment of guardians ad litem in all cases, some probate courts will waive this requirement for cause. Cook County requires the appointment of a guardian ad litem in all estate guardianships, and in person guardianships which might result in a physical intrusion, including medical procedures or medication, or a denial of rights. The Probate Act does not, however, require the appointment of a guardian ad litem where the Court decides that an appointment is not necessary for the protection of the respondent or for the Court to make an informed decision on the petition. Importantly, the law further requires that a guardian ad litem is supposed to report to the court concerning the respondent’s best interests, rather than acting as an advocate for the respondent.
The guardian ad litem is required to try to learn the respondent’s position on issues relevant to the petition. At or before the hearing, the guardian ad litem will file a written report detailing any material issues they discovered or reviewed. The guardian ad litem will appear at the hearing and testify as to any issues presented in his or her report.
While neither party in an Illinois guardianship is strictly required to have an attorney, the advice of legal counsel can be incredibly helpful, particularly in cases in which the respondent objects to the guardianship, or where complicated personal or financial issues are involved. If the respondent objects to the guardianship, they have the right to a court appointed attorney and a trial by a jury of six persons, although jury trials are quite rare.
What Happens at the Guardianship Hearing?
Under the Illinois Probate Act, the respondent is entitled to be represented by counsel, to demand a jury of 6 persons, to present evidence, and to confront and cross-examine all witnesses called. The hearing may be closed to the public at the request of the respondent, the guardian ad litem, or the respondent’s counsel. Unless excused by the court upon a showing that the respondent refuses to be present or will suffer harm if required to attend, the respondent is generally required to be present at the hearing.
In an uncontested proceeding for the appointment of a guardian, the person who prepared the report required for the adjudication of disability will only be required to testify at trial upon order of court for cause shown. (Broadly, an uncontested guardianship is one in which the respondent, guardian ad litem, petitioner, and all other interested parties agree that the guardianship proposed by the petitioner is in the best interests of the respondent).
At the hearing, the Court will review all submitted reports, witness testimony, and the report of the guardian ad litem, and will make a determination as to whether a guardianship should be established, whether it should be a guardianship of the person, estate, or both, and whether it should be plenary or limited in scope. The judge will prepare an order accordingly. Over the course of the hearing, the judge will inquire regarding:
- the nature and extent of respondent’s general intellectual and physical functioning;
- the extent of the impairment of his adaptive behavior if he is a person with a developmental disability, or the nature and severity of his mental illness if he is a person with mental illness
- the understanding and capacity of the respondent to make and communicate responsible decisions concerning his or her person;
- the capacity of the respondent to manage his estate and his 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;
- any other area of inquiry deemed appropriate by the court.
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 in Illinois. If the court finds that the individual meets the standard to be legally declared disabled, then a guardian may be appointed.
An authenticated transcript of the evidence taken in a judicial proceeding concerning the respondent under the Mental Health and Developmental Disabilities Code is admissible in evidence at the hearing.
Guardianships may be modified or terminated at any time under the terms set forth in Probate Code Section 11a-20 and 11a-21, and guardians may be removed for cause.
Do You Have Any Questions About Adult Guardianship in the Chicago Area?
Whether you are planning ahead for the future or considering your best options for taking care of an elderly loved one in the here and now, guardianship matters can become incredibly complicated. Consulting with a knowledgeable and empathetic attorney can help make navigating this entire process easier.
The insight of a legal professional can help you determine if guardianship is appropriate for your circumstances and, if so, what kind of guardianship you should consider. Moving forward, your legal professional’s knowledge and expertise can make it easier to move through our area’s complex probate court system, while giving you confidence and peace of mind at every step of the way.
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 to protect your loved one’s health and finances.
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.
