The recent news of some high-profile guardianships, also referred to as conservatorships, has led to a lot of hotly contested debates on the topic. Myths abound and often lead to misunderstandings of the guardianship process — many considering guardianship believe it is a one-size-fits-all proposition, that it is permanent once established, that it is the only option, or that it is easy to establish a guardianship. None of these common myths are true, but they are pervasive, and can lead to trouble down the road. If you’re considering guardianship, separating fact from fiction is critical — but it can be tough to do. We’ll help break down a few of the most common myths and misconceptions about Illinois guardianships.
Myth #1: All Guardianships Look Alike
There is a common belief that guardianship is a one-size-fits-all process, and that every guardianship is the same. This could not be further from the truth. In fact, “guardianship” is an umbrella term that refers to a spectrum of potential legal arrangements that can be modified to fit the needs of the individuals involved.
Broadly, a guardianship is a legal arrangement in which a person assumes responsibility and decision-making power for a “ward” — defined as an adult who is formally adjudicated disabled by the court, and who is therefore unable to make and communicate responsible decisions when it comes to their personal care or finances. This can also include guardianship of an elderly adult who may no longer be capable of looking after their own well-being or personal affairs.
Guardianship Of The Estate And Guardianship Of The Person
There are two main types of guardianships in Illinois: guardianship of the estate; and guardianship of the person. A guardian of the estate manages financial affairs involving the ward’s income, assets, and property. A guardian of the person is responsible for caring for a ward’s physical and personal needs, including making medical decisions and arranging for medical treatment, and ensuring that the ward has suitable living conditions. A guardian of the estate and person handles both of these categories, and is responsible for managing both financial and personal decisions.
Plenary Or Limited Guardianship
Additionally, an Illinois guardianship may be either plenary or limited. A plenary guardianship, or full guardianship, gives the guardian full decisionmaking responsibility in regard to the estate, the person, or both. A limited guardianship, as the name suggests, limits the guardian’s responsibilities to subjects designated by the court. The ward subject to the guardianship is still empowered to make decisions in all areas not specifically enumerated by the court’s order. Like a plenary guardianship, a limited guardianship can be of the person, the estate, or both.
A limited guardianship, for example, might give a guardian responsibility for making medical decisions for the individual subject to the guardianship, but give that individual responsibility for all other personal decisions. Courts, in fact, are required to limit the scope of a guardianship wherever possible. Illinois law makes clear that guardianship should 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” and that a guardianship “shall be ordered only to the extent necessitated by the individual’s actual mental, physical and adaptive limitations.”
Myth #2: Once Established, Guardianships Can’t Be Changed
Another common misconception is that once established, a guardianship is always permanent, and can never be removed or modified. In reality, Illinois law provides a mechanism by which a court can change the terms of a guardianship, appoint a different guardian, or remove a guardianship altogether.
The modification of a guardianship is governed by 755 ILCS 5/11a-20(a), which provides, in part:
the court may terminate the adjudication of disability of the ward, revoke the letters of guardianship of the estate or person, or both, or modify the duties of the guardian if the ward’s capacity to perform the tasks necessary for the care of his person or the management of his estate has been demonstrated by clear and convincing evidence. A report or testimony by a licensed physician is not a prerequisite for termination, revocation or modification of a guardianship orders.
To modify the terms of guardianship or remove a guardian, the interested individual must generally file a petition with the court. However, if the ward subject to the guardianship reaches out to the court by less formal means — including a letter or phone call — 755 ILCS 5/11a-20(b) provides that the court has the authority to appoint a guardian ad litem to file the petition on the ward’s behalf. A modification petition or petition to terminate can be filed at any time after the guardianship is established, and the court has broad discretion to consider and modify the arrangement in the ward’s best interest.
Myth #3: Guardianships Are Always Necessary
A guardianship is only one legal tool to protect the interests of an adult with a disability or an aging parent. The statute providing for guardianship, 755 ILCS 5/11a-3(b), makes it clear that courts should appoint guardians only when no other legal arrangement exists that will protect the rights of the ward:
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.
In fact, there are less restrictive legal arrangements that can be used to protect an individual’s financial and personal well-being while avoiding the restrictions of a guardianship arrangement. Arrangements like special needs trusts, powers of attorney, living wills, health care directives, or even something as simple as a shared bank account can protect the interests of a disabled or aging adult while maximizing their individual freedom to make decisions wherever possible.
Myth #4: I Can Negotiate The Guardianship Process Without An Attorney
While there are a lot of myths surrounding the guardianship process, it is not a myth that guardianships can become incredibly complicated, both legally and emotionally. Legal representation is not required to pursue a guardianship, however, an experienced and knowledgeable legal professional can advise you on every aspect of the process, from the technical aspects of filing or responding to a guardianship petition, to the legal and practical implications of different guardianship structures, to alternatives to guardianship that may better suit your needs.
In addition, hiring an attorney to advise and represent you in the guardianship process doesn’t have to be complicated – it’s often more affordable and less complex than you might think, and can be a major step in preventing costly and complex errors down the line.
Considering Adult Guardianship in the Chicago Area?
Whether you are planning ahead for the future or trying to take care of a disabled or 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.