Adult guardianship is a legal process by which an adult who has been adjudicated disabled is assigned a legal guardian. Most adult guardianships are uncontested, meaning that all parties agree on the need for guardianship and on the guardian.
A legal guardian is a person designated by the Probate Court to make decisions on behalf of another person, generally called a ward. The guardian’s duties are outlined in the Court’s order establishing guardianship, and are based on the circumstances, needs, and best interests of the ward. An adult guardianship may be plenary or limited, depending on the ward’s needs.
How Is An Adult Guardianship Established?
To establish an adult guardianship, the guardian must file a petition and establish, by “clear and convincing” evidence, that the ward is experiencing mental deterioration, physical incapacity, developmental disability or mental illness and an inability to manage personal or financial affairs due to such deterioration, incapacity, disability, or illness. 755 ILCS 5/11a-2.
What Is A Contested Adult Guardianship?
A contested guardianship is one in which the potential ward or another person objects to the establishment of a guardianship, the parameters of the guardianship, or the appointment of a specific guardian.
If a guardianship is contested for any reason, the Court will schedule a guardianship hearing. 755 ILCS 5/11a-10(b). To protect the potential ward’s interests, the potential ward is entitled to legal representation, appointment of a guardian ad litem (a private, court-appointed attorney or other qualified individual charged with reporting to the Court), a 6-person jury and other due process, and is required to be present at the guardianship hearing absent a showing that the ward refuses to be present or will suffer harm if required to attend. 755 ILCS section 11a-11(a).
Prior to the guardianship hearing, each side will engage an expert medical witness to prepare a report regarding the need for a guardianship. The guardian ad litem will also submit a report with the guardian ad litem’s recommendations regarding the establishment and scope of the potential guardianship. Each side may also call non-expert fact witnesses who know the potential ward to provide their opinions as to the potential ward’s mental and/or physical capacity.
Right to Counsel
The ward, or potential ward, has the right to representation by counsel. An attorney can be appointed by the Probate Court if the potential ward requests one or if the Court finds that the potential ward’s best interests require appointment of counsel. A request for an attorney need not be in writing — the ward or potential ward’s oral request is enough. 755 ILCS 5/11a-10(b), 11a-11(a).
Right To A Jury Trial
A potential ward is entitled to a guardianship hearing before a 6-person jury. The jury is charged with finding facts and making a determination regarding the ward’s disability and the need for a guardian. 755 ILCS 5/11a-11(a). The person seeking to establish a guardianship must prove disability by the “clear and convincing evidence” standard. In Estate of Ragen, 34 Ill.Dec. 523 (1979) the court held that the “clear and convincing evidence” standard is defined as “the quantum of proof which leaves no reasonable doubt in the mind of the trier of fact as to the truth of the proposition in question.”
Right To Independent Experts
A potential ward may also request, usually through counsel, that the court appoint independent medical or psychiatric evaluations to test the petitioner’s claims. 755 ILCS 11a-11c.
What Does The Court Decide?
Once the jury has made a determination of disability, it is up to the Probate Court Judge to decide the parameters of the guardianship, including whether the guardianship will deal with financial matters (guardianship of the estate), personal decisions (guardianship of the person), or both, and whether the guardianship will cover all of the ward’s affairs (plenary guardianship) or be limited in scope (limited guardianship). The Court will also determine who will serve as guardian. Adult 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, adult 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.
