Estate mismanagement poses a significant challenge for disabled adults who rely on these funds to secure their well-being and provide for their needs. 

The misuse of their financial assets can lead to dire consequences, jeopardizing the ability of disabled people to meet their daily requirements, access quality healthcare, and maintain a decent standard of living.

Accountability and trustworthiness are essential for anyone appointed to manage the affairs of vulnerable individuals. In 1979, the Illinois Probate Act was amended to provide statutory protection for state residents who cannot make or communicate responsible decisions and gave the court “the flexibility to tailor guardianship to meet the needs and capabilities of disabled persons,” according to the Illinois Guardianship and Advocacy Commission (IGAC).

At the Law Offices of J. Jeltes, our compassionate team of advocates has substantial experience helping families through adjudication of disability and establishing guardianship for those in need. Let’s take a closer look at the details of the process, how guardians are selected, and what you can do if you believe a loved one under guardianship is being exploited.

Understanding Your Family’s Needs

While the court makes every effort to ensure that adults under guardianship are protected, financial, physical, emotional, and other types of mistreatment do occur.

Unfortunately, the National Center for State Courts has found that most reports on the problem of exploitation by guardians lack crucial empirical data. In a 2016 nationwide survey, only 39 states (76%) were able to provide a certain amount of useful information, and none were able to report in the detail requested. 

One of the main barriers to states delivering quality data was the highly localized nature of conservatorship practices. 17 states have specialized probate courts that are administered by cities or municipalities, and in the remaining 33 states, not all probate courts oversee guardianships. Some states, like North Carolina and Texas, do not require a law-trained judge to oversee these cases. 

However, the U.S. Department of Health and Human Services has built the National Adult Maltreatment Reporting System (NAMRS), which collects valuable data from Adult Protective Services (APS) programs across the country and has a 100% participation rate from 56 states, territories, and the District of Columbia.

In the state of Illinois, these types of cases are handled by the circuit court. An individual seeking guardianship of another can do so without an attorney, but the IGAC recommends having the advice of legal counsel to help navigate the hearing and the necessary forms and fees. The alleged disabled person, ward, or Respondent, will be appointed a guardian ad litem by the court to advocate for their needs during this time. 

This will help determine the type of oversight needed — guardianship of the person, guardianship of the estate, or guardianship of the estate and person.

  • A guardian of the person cares for their ward’s physical and personal needs. 
  • A guardian of the estate is responsible for overseeing financial and legal matters on behalf of the ward. 
  • Guardians of the estate and person protect both the financial and personal interests of their ward.

In addition, the court may grant either limited or plenary guardianship, depending on a physician’s report on the capabilities of the disabled person. 

Implementing Safeguards

Serving as a guardian for an incapacitated adult is a serious responsibility and should never be approached lightly. It’s critical that a guardian acts in the ward’s best interests and carries out fiduciary and other duties with due diligence, accountability, and transparency.

Choosing who will act in this capacity is a complicated matter, and if at all possible, the wishes of the disabled adult should always be taken into consideration. A family member may petition the Judge to be named guardian, or the court-appointed guardian ad litem may make recommendations. Once a guardian is selected, they are issued Letters of Office, a legal document that acts as certified proof of the appointment

Per the IGAC’s Guardianship Fact Sheet, “an appointed guardian is responsible for overseeing a program intended to maximize the ward’s self-reliance and independence,” and is typically required to submit a comprehensive annual report to the court. Estate inventories and accounting of receipts and disbursements are subject to regular court review. 

If you believe that a loved one under guardianship is being taken advantage of, what is the best way to proceed? The first step is to consult with an attorney who specializes in matters of guardianship and to file a complaint with the court as soon as possible, as only the court can terminate or modify the terms of guardianship (755 ILCS 5/11a-20).

Any suspicion of mistreatment or abuse should also be reported to your local authorities; in this area, families should contact the Elder Abuse Prevention Office of the Chicago Department of Family and Support Services or the 24-hour statewide Adult Protective Services Hotline at 1-866-800-1409. Certain professionals are required by law to report suspected abuse, such as social workers, law enforcement, and medical personnel. 

Guardians who are proven to have mismanaged funds or abused their wards can be charged with embezzlement, elder abuse, larceny, money laundering, felony theft, neglect, or other crimes.  

Finding Strength and Clarity

For those over 18 who suffer from severe mental or physical deterioration, or developmental disabilities, being appointed a guardian by the court can be seen as a loss of rights or even a punishment. These feelings are exacerbated when the guardian abuses their position and mismanages their financial estate for their own selfish goals. 

There are safeguards in place to protect these vulnerable people, but seeking the expertise of a guardianship attorney can help families ensure that their loved ones and their assets are under the care of someone trustworthy and responsible. 

Guardianship should never be used in a retaliatory manner or as a convenience, and there are other alternatives, such as powers of attorney, that should be considered first. Only in cases where the individual is truly in need should the complex and emotionally stressful process of guardianship be initiated. 

You don’t have to navigate this unknown terrain alone — reach out today to speak to a knowledgeable and experienced family law advocate.