The issue of guardianship is complex and fraught with myths and misconceptions. But it’s a necessary step when a person is unable to make and communicate responsible decisions regarding their care or finances due to a mental, physical, or developmental disability, or when they have not yet reached the age of majority. 

According to the Illinois Guardianship and Advocacy Commission, this state has “one of the most unique and progressive guardianship laws in the United States.”

Whether you are a current or potential guardian of a family member, understanding the rights, responsibilities, and obligations associated with guardianship in Illinois is essential. Let’s delve into the legal landscape of guardianship, shedding light on the intricacies that define this important facet of the law.

Guardianship Defined

Guardianship is a legal relationship where an individual is appointed to make decisions for another person who cannot do so themselves. It’s vital to note that disability alone is not a basis for guardianship, and there are other alternatives, such as a power of attorney (POA) or designation of a health care surrogate

The court typically grants guardianship to ensure the well-being and protection of those who cannot advocate for themselves. In Illinois, this could involve minors, disabled adults, or individuals incapacitated due to illness

Understanding the various types of guardianship is fundamental to navigating this difficult legal terrain:

  • Guardianship of Minors: When parents are unable to care for their children due to various reasons such as illness, incarceration, or substance abuse, the court may appoint a guardian to make decisions regarding the child’s welfare.
  • Guardianship of Disabled Adults: For individuals with disabilities who cannot manage their personal or financial affairs independently, a guardian may be appointed to provide the necessary support and protection.
  • Guardianship of the Person: The guardian may make decisions concerning physical needs, medical treatment, residential placement, social services, or other personal requirements for a minor or incapacitated adult. 
  • Guardianship of the Estate: Established when the ward cannot manage financial affairs or legal proceedings, and the guardian is responsible for preserving and protecting the ward’s assets and property. 
  • Limited guardianship: Applying to both the person and the estate, a limited guardian is appointed for those who lack some but not all capacity to make personal or financial decisions, and has only limited powers, as specified by the Court.
  • Plenary guardianship: Utilized for guardianship of the person, the estate, or both, in situations where the ward is found to be totally without the capacity to make or communicate important decisions.

Anyone 18 and older can file a petition requesting the court find an adult disabled and in need of guardianship, but petitions are often brought by family members or friends, especially when there are assets to protect or medical decisions to make. In the case of a child, a court order appointing a guardian does not terminate parental rights.

The court will order an evaluation of the alleged disabled person and appoint an attorney guardian ad litem or GAL to represent their interests. Guardians must meet residency, bonding, certification, reporting, education, and other requirements, and a background check may also be required. The procedures for obtaining a court-appointed guardianship are outlined in Section 11a of the Illinois Probate Act (full text available here).

Guardian Rights and Rights Retained by the Ward

Under guardianship, wards are guaranteed specific rights, such as the right to contact and retain counsel, and to have proceedings initiated for discharge, modification, or termination of the guardianship. 

Wards also retain the right to vote, operate motor vehicles if competent, and make or revoke power of attorney, amongst others. If feasible, they have the right to make decisions in areas not specifically limited by the guardianship order. Wards cannot be involuntarily admitted to mental health facilities based solely on being under legal guardianship — they must meet certain criteria as outlined by the state, and they cannot be forced to take medication against their will. 

Guardians have the authority to make a myriad of potentially life-changing decisions on behalf of the ward, whether related to medical care, education, or financial matters. They also have the right to legal representation to ensure they can navigate the legal complexities associated with their role.

Responsibilities, Obligations, and Reporting

Under the Illinois laws of guardianship, the individual or entity has an array of critical duties, ranging from fiduciary responsibilities to carefully considered healthcare choices, and guardians must adhere to ethical and legal standards that are focused exclusively on their ward’s best interests. They must always exhibit the highest degree of trust and loyalty.

A guardian for an incapacitated adult or minor child must make sound decisions regarding the ward’s residence, education, medical treatment, etc. (for the person) and prudent management of their financial resources (for the estate). 

Guardians cannot sell or mortgage property belonging to their ward without a court order, and they must make a reasonable effort to determine their ward’s wishes and proceed accordingly, as close to what the ward would have done if competent or of adult age. 

To prevent abuse, reports must be filed with the appointing court to provide status updates on the ward and account for the exercise of their powers and performance of duties. Annual reports on the ward’s condition along with signed health professional statements may also be mandated. Guardians of the estate provide detailed inventories of assets coming into their possession or control within 60 days of appointment and accountings whenever ordered by the court. 

Maximizing Independence

Guardianship in Illinois is not indefinite, and it may be terminated under certain circumstances. Per Illinois statute 755 ILCS 11a-17(a), “The guardian shall assist the ward in the development of maximum self-reliance and independence.” 

When the ward comes of age or if they regain the capacity to make decisions independently, the court may terminate the guardianship. A significant change in circumstances, such as a move to another state or the guardian’s inability to fulfill their responsibilities, may lead to the termination of guardianship.

Every guardianship situation is unique, and it’s crucial to consult with a knowledgeable and compassionate family law advocate to nurture a deep understanding of the legal processes, rights, responsibilities, and obligations involved. 

Whether you are seeking guardianship or have been appointed as a guardian, being well-informed is the first step towards ensuring the welfare and protection of those who cannot advocate for themselves.

The Law Offices of J. Jeltes provide valuable resources for individuals grappling with the complexities of guardianship in the Land of Lincoln and offer clarity on the path ahead — reach out to us today!