Guardianship of the Person Vs. Guardianship of the Estate

Here in Chicago, understanding the many moving parts that go into legal guardianship can be complicated, and can easily start to become overwhelming — especially if you’re navigating this tricky process for the first time. 

Looking at the big picture, guardianship is a legal process that is used to protect vulnerable individuals who are unable to care for themselves. In Illinois, a guardian can be appointed for a minor child or for an adult who has been adjudicated as disabled. 

Guardianship of a Minor

A minor under 18 years of age may require a guardian if their parents have died, or if the parents cannot or will not properly care for the child. In other cases, a minor may need a guardian if their parents’ whereabouts are unknown, or if the parents agree to the guardianship. Many people use their estate plan to name a guardian for their minor children in the event that they pass away or become incapacitated; often, this “standby guardian” will be a grandparent, aunt or uncle, or a friend of the family. A guardian for a minor must be appointed by the court. In most cases, he or she will be legally responsible for the child until properly discharged by the court, or when the child turns 18. 

Guardianship of an Adult

Guardianship of an adult occurs in situations where the court believes that a person who is 18 years or older cannot make basic life decisions or properly manage their property or estate. In order for a guardian to be appointed to an adult, there must be an adjudication of a disability, a court process which will determine if the adult is in need of guardianship. The court will also need to make a finding that the proposed guardian is suitable.

The types of adults who may benefit from guardianship include seniors who have experienced severe mental or physical decline as a result of aging, adults with limiting physical impairments, or individuals with developmental disabilities. Guardianship for an adult is often considered for adult children who can live somewhat independently, but still need regular assistance, as well as elderly adults facing Alzheimer’s disease or dementia, which may leave them susceptible to scams, fraud, and dangerous situations. 

Three Types of Guardianship

There are several key types of guardianship to understand when it comes to both minors and adults. In Illinois, an individual can serve as a guardian of the person, a guardian of the estate, or a guardian of the estate and person. 

These three types of guardianship come with different rights, responsibilities, and expectations. 

The Role of the Guardian of the Person for Minors and Adults

A guardian of the person is one whose responsibilities are to care for their ward’s physical and personal needs. 

For minors, the guardian of the person is responsible for making sure that the minor is clothed, fed, housed, and kept safe. The guardian of the person is also there to ensure that the child receives proper education and medical care. As a result of these important duties, the guardian of the person will make day-to-day decisions on the child’s behalf, and generally handle the child’s routine expenses. The guardian of the person must obey all court orders relating to the child, and may apply and receive public benefits for the child, as applicable. 

Guardianship of the person has similar requirements in the case of an elderly or incapacitated adult. Most importantly, the guardian of the person will be responsible for two key issues: medical decision making and residential placement. The guardian of the person will make decisions about care and support for their adult ward. This may mean helping the adult to arrange medical services and treatment, while also ensuring that they have suitable living conditions. In all personal decisions, it is expected that the guardian of the person will take into account their ward’s wishes, as well as his or her physical needs and financial circumstances. 

Adult guardians are responsible for regularly reporting to the court on the mental, physical, and social condition of the person in their charge. They must keep the courts informed of the ward’s living arrangements, as well as the medical, educational, or vocational services they have received. After the guardian is appointed, they will be required to submit an annual report on the above.

The Role of the Guardian of the Estate for Minors and Adults

Broadly speaking, a guardian of the estate is responsible for overseeing financial matters on behalf of their ward. 

For minors, a guardian of the estate is tasked with managing and protecting any money and property owned by the child. The guardian of the estate is generally limited in how they can spend these assets, and must only use these funds, accounts, property, or investments for the benefit of the child and with approval of the court. 

For adults, guardianship of the estate is used for those who cannot manage their own financial affairs, but who have enough income or assets for a guardian to be appointed. The guardian is responsible for preserving and protecting the ward’s assets, appraising property as necessary, budgeting, and distributing income as applicable. As with a guardian of the person, the guardian of the estate for an adult must regularly report to the courts on the status of the estate, or how money was spent to cover the ward’s expenses. A guardian of the estate must also appear for the disabled person’s legal proceedings.

Guardian of the Estate and Person

In some cases, the guardian for a minor or an adult may be granted guardianship of the estate and person, which combines the duties described above. This means that the guardian will be responsible for protecting their ward personally, while also managing money and property for his or her benefit. 

In situations where the guardian of the person and the guardian of the estate are not one in the same, these two guardians must often work closely together. For example, the guardian of the estate may need to provide funds from the ward’s accounts to reimburse or cover expenditures that the guardian of the person must make to provide for the minor or adult’s care. 

It’s also important to remember that all of these types of guardianship can function somewhat differently, depending on the details of the situation. For adult guardianships, for example, the court may bestow plenary guardianship or limited guardianship. A plenary guardianship is for adults who lack total capacity or understanding to make or communicate personal decisions or manage their financial affairs. In this instance, the guardian largely has the power to make all decisions about personal care and/or finances on behalf of the disabled person. A limited guardianship may be used in situations where the adult has some but not all capacity to make personal decisions or handle their estate. In this case, the guardian may only make decisions about personal care or personal finances which the court has specified. This type of guardianship may be more individualized and less intrusive, but it can also be more complex to put into place.

Understanding Guardianship In Illinois

Whether you have a child with special needs or an aging parent, we believe that guardianship is oftentimes a healthy and proactive option for all involved. Our firm can assist in matters relating to the guardianship of minor children and disabled adults in Chicago and the state of Illinois.

Founded in 2009 and offering more than 15 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, at every step of the way. 

Looking to protect a family member’s health and assets? Have any more questions about legal guardianship in Illinois? Curious about what it takes to get the guardianship process started? Don’t hesitate to get in touch to begin the conversation.