Guardianship of an Elderly or Disabled Person
Preliminary Steps – Physician’s Report and Consideration of Limited Guardianship
Just because a person has a mental disability does not automatically dictate a need for guardianship. When determining the need for guardianship of an individual, tests are performed which focus on decisional capacity; which is, the ability of the person to make decisions and to properly communicate decisions once made. Making incorrect or ill-advised decisions on a periodic basis is not the test. Rather, it is an inability to engage in the decision making in the first place which is important.
Practical questions that may be addressed to the alleged disable person are as follows:
1) Does the person understand that a particular decision needs to be made?
2) Does the person understand the options available in any decision?
3) Does the person understand the consequences of each option?
4) Is the person able to properly inform appropriate parties once the decision has been made?
Good examples of an individual’s inability to make sound decisions would focus on where to live, where to work, how and when to seek medical care or other professional services, how to properly care for dependents, and how to purchase items like food and clothing. If the alleged disable person is unable to provide sound and reasonable answers that would indicate that a person may be in need of some guardianship services.
Before starting a court proceeding for the guardianship of another person, the one who wishes to be the guardian of another (referred to as a “ward”) must prove to the court that a guardianship would be in the best interests of the ward. The first thing one must obtain is a doctor’s report certifying that the person is disabled and needs a guardian. A pre-printed report form from the Probate court where the guardianship proceeding will occur should be used. The court proceedings will take place in the county court where the person with disabilities resides. The report must be completed and signed by a licensed physician. If there are any other professionals who are familiar with the person with disabilities, they should also sign the form. During the court proceedings, the judge may request that one or more of the persons who sign the report may need to testify in court.
It is important that the report contain all of the information required by the Probate Act:
(1) A description of the nature and type of the disability, and an assessment of how the disability impacts the ability of the person with disabilities to make decisions or to function independently;
(2) An evaluation of the disabled person’s mental and physical condition and, where appropriate, educational condition, adaptive behavior and social skills, which have been performed within three months of the date of the filing of the petition;
(3) An opinion as to whether guardianship is needed, and the reasons therefore;
(4) Recommendation as to the most suitable living arrangement and, where appropriate, treatment or habilitation plan for the respondent and the reasons therefore;
(5) Signatures of all persons who performed the evaluations upon which the report is based, one of whom shall be a licensed physician and a statement of the certification, license, or other credentials that qualify the evaluators who prepared the report.
The more detailed the report, the more likely it will contain all of the information legally required for the court to make the appropriate decision. Since many Illinois physicians are unfamiliar with limited guardianship, it is important for the petitioner or his/her attorney to fully explore the potential for limited guardianship in each case regardless of the initial recommendation of the physician.
Plenary (total) guardianship should only be used when the person with disabilities is so incapacitated that he/she truly cannot make any decisions himself/herself. The physician’s report should accurately reflect the person with disabilities abilities and skills as well as his/her deficits and problems. It is up to the petitioner to assure that this is done; it may be necessary to have other professionals contribute to the report if the physician is not familiar with all aspects of the person’s life or if the nature of the disability is outside the physician’s area of expertise.
Attorney Representation and Other Protections
Although an individual seeking guardianship for another may do so without the use of an attorney, the advice of legal counsel is recommended. The assistance of a knowledgeable probate attorney can be helpful where the alleged person with disabilities objects to guardianship, or where complicated personal or financial issues are presented to the court. A person facing a guardianship adjudication (when the court decides whether to appoint a guardian) has the right to a court appointed attorney (guardian ad litem) and a trial by a jury, although jury trials are quite rare. An individual facing a guardianship adjudication also has the right to request an independent medical evaluation.
Guardian Ad Litem
Most counties in Illinois require the appointment of a guardian ad litem. This is a private attorney, or trained professional, charged with independently advising the court concerning the apparent need for guardianship. It is the responsibility and duty of the guardian ad litem to report to the court the person with disabilities’ best interests. Under Illinois law, if the guardian ad litem is not a licensed attorney, he shall be qualified, by training or experience, to work with or advocate for the developmentally disabled, mentally ill, physically disabled, the elderly, or persons disabled because of mental deterioration. The guardian ad litem must meet with the person with disabilities and tell him or her about the pending guardianship proceedings. During the meeting the guardian ad litem will try to determine the person’s opinion with respect to: being adjudicated disabled, the proposed guardian, any changes in residential placement, changes in care that may result from the guardianship, and whatever else the court may deem appropriate. After the meeting between the guardian ad litem and the person with disabilities, the guardian ad litem files a written report and appears and testifies in court concerning the appropriateness of guardianship.
Preparing the Documents For Court
Once the report is obtained, if guardianship is appropriate, the person who will pursue the guardianship, or his/her attorney, will need to prepare the following documents:
- Report: The physicians’ evaluations of the person which is submitted and reviewed by the court.
- Petition: This is the official request to the court for appointment of a guardian.
- Rights Notice: This is a plain-language summary of the person with disabilities’ rights as required under Section 5/11a-10 of the Probate Act.
- Summons: The official notice to the person with disabilities of the guardianship proceedings. This gives the court jurisdiction over the respondent (person with disabilities) if it is delivered to the person with disabilities in the correct manner.
- Notice of Motion to Interested Parties: An announcement of the date, time and place of the guardianship proceedings, given to all close relatives, the proposed guardian, and the person with whom the person with disabilities resides so that they can appear in court if they wish.
- Order Appointing Guardian Ad Lidem: Order the court signs appointing guardian ad lidem to evaluate the person with disabilities and to protect the interests of the alleged person with disabilities in the guardianship proceedings.
- Order Appointing Limited Guardian or Order Appointing Plenary Guardian. An order for the court to sign if it decides that guardianship is warranted.
- Oath or Oath of Office: The official agreement of the appointed guardian to serve as guardian.
- Bond: A promise to be responsible for financial damage to the estate up to a certain designated limit. The court may require someone to co-sign as a surety. The court may waive bond in non-estate cases.
- Statement of Right to Discharge Guardian or Modify Guardianship Order. This form (CCP-214) is required in Cook County. Other counties vary as to whether they require such a document. It tells the newly adjudicated ward about his/her rights.
The petition is filed with the Probate Court, along with the report of the physician. Once the petition is accepted by the court, a summons is prepared. The summons and the petition are stamped by the clerk. The paperwork must be delivered to the county sheriff to serve to the person with disabilities.
The notice of motion, with a copy of the petition attached, is sent to each person whose name and address appears in the petition. This includes the proposed guardian, and the person with whom the alleged person with disabilities resides, as well as any current, acting guardian of the alleged disabled person.
The order and oath are either given to the clerk of the court at the time of filing, or presented to the judge at the hearing. Practices vary from county to county. Also, the court must receive original documents; others may receive copies. A hearing date will be set by the court clerk or the judge within 30 days of the filing of the petition. This usually ensures enough time for the sheriff to deliver the summons.
At the guardianship hearing, if it is likely that the person with disabilities will contest to the appointment of a guardian, it may be necessary to have at least one witness to testify in support of the need for guardianship. Sometimes the judge may require a witness to prove the case even if there is no contest. The doctor is not required to testify unless the court requires it. The witness could be a nurse, therapist, social worker, nursing home administrator, etc. If it is not clear whether witnesses are required, it is best to be prepared with a witness “just in case.” The alleged person with disabilities is entitled to attend the hearing. If the person wishes to attend, but has difficulty with mobility or transportation, the court and guardian ad item should be advised.
Temporary Guardianship in case of emergency
When the court determines that emergency protection is warranted, a temporary guardian may be appointed. A petition for temporary guardianship must be prepared, along with a proposed order for the judge to sign. These documents must be drafted by the petitioner or his/her attorney with substantial details to substantiate the emergency order. The court determines whether notice shall be given to the person with disabilities, and if so, how and when. The court also determines whom else to give notice. The court can then appoint a temporary guardian with very specific powers and duties written into the order. The temporary guardianship expires automatically when a permanent guardian is appointed, the guardianship petition is dismissed, or in 60 days, whichever comes first.
A temporary guardianship is appropriate only if there is a substantial need and it would not be in the best interests of the person with disabilities to wait for the court to appoint a permanent guardian through the regular court proceedings. In determining the necessity for temporary guardianship, the immediate welfare and protection of the alleged disabled person and his estate shall be of paramount concern, and the interests of the petitioner, any care provider, or any other party shall not outweigh the interests of the alleged disabled person.
Protective purposes of a guardianship
A guardianship of a person is meant to protect the person and property of those who cannot manage for themselves. Guardianship can be an extreme form of intervention in the life of a person, because control over personal and/or financial decisions is transferred to a guardian for an indefinite, but often permanent, period. Once established, it might be difficult to revoke, even if the guardian or the original petitioner believes that guardianship is no longer necessary. If the courts require expert testimony to support the revocation of guardianship, experts may be hesitant to certify that the person does not need guardianship.
The law requires that guardianship be used only if it will promote the well-being of the person with disabilities (referred to as a “ward”) and protect the person with disabilities against neglect, exploitation and abuse, and encourages development of maximum self-reliance and independence. Similarly, Orders of Protection are also available in guardianship cases. Consequently, an order of protection may be joined together with a plenary or temporary petition for adjudication of disability, and a court may enter both orders of protection and orders appointing guardians in the same proceeding.
Alternatives to Guardianship
Guardianship can be the most restrictive alternative available to a person in need of personal or financial assistance. All possible alternatives should be explored before instituting guardianship proceedings. Competent medical and legal professionals, social workers, caretakers, family and friends should consult and agree on a suitable course of action whenever possible. Possible alternative actions to a guardianship may include the use of a personal representative, financial counseling, bill paying assistance programs, living trusts, in-home support programs, and other advocacy services may avoid the need for guardianship.
In addition, there are durable powers of attorney and declarations for mental health treatment. These are advance directives that designate another person to make medical, personal or financial decisions.
In addition, Illinois provides for an alternative means of decision-making under the terms of the Health Care Surrogate Act, which is available for those who did not or could not execute a proper advance directive.
Under the Illinois Power of Attorney Act, a person is given the right to appoint an agent to make financial, property, or health care decisions. When the person becomes disabled or incapacitated, the agent makes financial and personal decisions for the person, consistent with the terms of the power of attorney. By signing a power of attorney form, the person is able to detail specific things he or she wishes an agent to do or not to do. A person may customize the form to limit or increase the powers available to the agent, so as to reflect personal preferences. The execution of the form requires no court involvement, and forms are readily available. By law, to be valid, the powers of attorney must be properly signed and executed.
For information about mental health issues, please refer to the Mental Health Treatment Preference Declaration Act. Like conventional powers of attorney, the declaration for mental health treatment is intended to give the principal the ability to determine what will and will not happen in the event the person is in need of mental health services. Unlike conventional powers of attorney, declarations for mental health treatment may not be revocable.
The Health Care Surrogate Act provides an additional means of making health care determinations on behalf of an incapacitated person who requires medical decision making. Under this, a parent, spouse, child, sibling, relative, or friend of a person who lacks capacity to consent or refuse medical decisions can act as a substitute decision maker. The surrogate decision maker may act without court appointment and is legally authorized to make decisions to forgo life sustaining treatment, where a doctor has found a qualifying medical condition to be in place. The process provided for under this law may be invoked where no guardian has been appointed, and no power of attorney or living will has been executed. Surrogates are authorized to make all kinds of medical decisions, in addition to the traditional end-of-life decisions addressed under the original Act. Robert Thomas should be consulted to better understand the nuances of powers of attorney and other types of surrogate decision making.
How to qualify as a guardian
To be appointed as a guardian, one must be at least 18 years of age, be of sound mind, not been convicted of a felony, be a resident of the United States. Any agency, public or private, may serve as guardian of the person or estate, if the court finds that it is capable of providing an active guardianship program. The court shall not appoint as guardian an agency which is providing residential services to the person with disabilities. This is to ensure against any conflict of interest. A banking institution may be appointed guardian of the estate (financial matters) but not guardian of the person.
Types of guardianships
There are several types of guardianship available under the Illinois Probate Act. It is important in each case to consider either limited or plenary guardianship.
The basic forms guardianship can take are as follows:
Limited Guardianship – used when the person with disabilities can make some, but not all, decisions regarding his/her person and/or estate. “Guardianship shall be ordered only to the extent necessitated by the individual’s mental, physical and adaptive limitations.” A limited guardian makes only those decisions about personal care and/or finances which the ward cannot make. The powers of a limited guardian must be specifically listed in the court order. The ward retains the power to make all other decisions regarding his/her person or estate. Limited
Guardianship may be used to appoint a limited guardian of the person, a limited guardian of the estate, or both.
Plenary Guardianship – used when the individual’s mental, physical and adaptive limitations necessitate a guardian who has the power to make all important decisions regarding the individual’s personal care and finances. Plenary guardianship may be used for the person, the estate, or both.
Guardianship of the Person – used when a person, because of his disability, lacks sufficient understanding or capacity to make or communicate responsible decisions regarding the care of his person. The guardian of the person makes decisions regarding the support, care, comfort, health, education, maintenance, and professional services (such as educational, vocational, habilitation, treatment and medical services) for the person under guardianship who is called a ward.
Guardianship of the Estate – used when the person, because of his disability, is unable to manage his property or financial affairs. A guardian of the estate makes decisions about management of the ward’s property and finances.
Temporary Guardianship – used in an emergency situation. Temporary guardianship can last no longer than 60 days, and is a means to assure that the person who evidences need for guardianship receives immediate protection.
Successor Guardianship – used upon the death, disability, or resignation of the initially appointed guardian, when guardianship is still needed.
Testamentary Guardianship – used by parents of a person with disabilities and designates, by will, a person who assumes the guardianship appointment upon the death of a parent. The designated person must still be appointed by the court before he/she can serve as guardian. The court will consider the designated person but is not bound by the testamentary designation. It can appoint someone else if the proposed guardian is found to be inappropriate.
Standby Guardianship – used to provide continuity in the guardianship case if the primary guardian dies, becomes incapacitated or is no longer acting. The court creates the standby guardian upon the filing of a petition for the appointment, when a plenary or limited guardian is appointed. The court applies the same standards used in determining the suitability of a plenary or limited guardian in determining the suitability of a standby guardian. The standby guardian shall have authority to act as guardian without direction of court for a period of up to 60 days. Within that 60 days, the standby guardian shall file or cause to be field a petition for the appointment of a guardian.
Short-term Guardianship – used to enable a guardian to appoint an acting guardian for short periods. The guardian of a disabled person may appoint in writing, without court approval, a short-term guardian of the disabled person. The written instrument shall be signed by, or at the direction of, the appointing guardian in the presence of at least two credible witnesses at least 18 years of age, neither of whom is the person appointed as the short-term guardian. The person appointed as the short-term guardian shall also sign the written instrument, but need not sign at the same time as the appointing guardian. The duration of the appointment cannot exceed a cumulative total of 60 days in any 12 month period. A guardian may not appoint the Office of State Guardian or a public guardian as a short term guardian, without the written consent of the state or public guardian or an authorized representative.
The length of time a guardianship proceeding takes depends on the type of guardianship.
In emergency situations, temporary guardianships can be obtained quickly; it is possible to have a temporary guardian appointed the same day the petition is filed.
In non-emergency situations, proceedings depend upon the availability of information necessary for preparation of court papers, the availability of a judge, the type of notice required considering the circumstances of the case, and the existence of complicating factors. In routine non-emergency cases, the most time-consuming part of the process is preparing the documents and gathering the information for the presentation of the case. It is important to thoroughly investigate the case before filing it, because it cannot be withdrawn later without the court’s permission. One is not permitted to file a frivolous guardianship case and later investigation reveals that there is no justification for the case. There can be serious consequences for the petitioner and also for the petitioning attorney.
Once the case is filed, it could take up to two months for a decision to be reached by the court. The fact that a temporary guardian may have been appointed does not determine whether a permanent guardian will be appointed.
Office of State Guardian
The Office of State Guardian (OSG) is one of three divisions of the Illinois Guardianship and Advocacy Commission (IGAC). The IGAC is a civil rights agency that was created in 1979 to protect the rights and promote the welfare of persons with disabilities in Illinois. The Office of State Guardian serves as guardian of last resort for individuals with disabilities when no other person is available to serve. Most of its wards are indigent or have limited assets. In addition, the Commission’s intake unit counsels and assists families or others willing to become guardians, with the goal of locating non-public guardians and finding viable alternatives to guardianship.
The other two divisions of the Commission are the Legal Advocacy Service (LAS) and the Human Rights Authority (HRA). The LAS provides legal advice and representation to eligible persons with disabilities of all ages to enforce their rights under mental health and related laws.
The HRA also serves persons with disabilities of all ages by investigating complaints of alleged rights violations by service providers.
Referring a person to the Office of State Guardian
Guardianship is appropriate only when a person is unable to manage his/her person or property and consequently is in danger of abuse, victimization or substantial danger to health. When there is no one to assume the responsibility of guardianship (when there are no family, friends, relatives, or anyone else interested in serving as a guardian), then a referral to the Office of State Guardian is appropriate. Sometimes a referral to the Commission is also appropriate when an impartial or neutral guardian is required. To refer someone to the Commission, contact the Intake Unit toll free at 1-866-274-8023 or dial 708-338-7500. If a guardianship petition is to be filed requesting the appointment of OSG, the referring person will be asked to provide information regarding the alleged disabled person and all known relatives and interested parties.
When referring a person to the OSG, a Referral/Client Status form and a properly written physician’s report, signed by a physician, certifying that guardianship is necessary.
The information as presented is necessary for an assessment of the case and for appropriate follow-up once OSG is appointed. OSG can provide counseling regarding the preparation of papers for the guardianship proceedings. OSG will accept appointment by the court if guardianship is appropriate and there is no other suitable person or organization willing and able to serve.
In the event of temporary guardianship appointments, OSG should be notified as early as possible. Delays in notification can result in delays in decision making once OSG is appointed.
Lack of adequate notice may also give rise to the need for a continuance of the hearing to permit OSG to investigate the case. Issues must be discussed in advance with OSG staff, before the guardianship case is filed.
Referrals are not the same as appointing a guardian
When a person with disabilities is referred to the OSG, the first task is to determine if guardianship is necessary and whether the need for guardianship can be proven in court. While this determination is underway, the person(s) or agencies who have referred the disabled person to the OSG remain responsible for the well-being of the person with disabilities.
Only after the Office of State Guardian is appoint legal guardian of the person by the court is the OSG responsible for the welfare of that person.
The Office of State Guardian will not appoint a guardian if other family members exist.
The Office of State Guardian is the last resort. When a person needs a guardian, the responsibility of guardianship is with family or friends capable of providing an active and suitable program of guardianship
The Office of State Guardian can be appointed to handle a person’s money or financial affairs under certain circumstances only
An OSG can be appointed when a person’s assets are $25,000 or less and there is no one else to serve.
If the person’s estate is valued over $25,000, the County Guardian may be appointed in counties that have one. If the County Guardian chooses not to take the case, and there is no one else to serve, the Office of State Guardian may be appointed.
Services provided by the Office of State Guardian after an appointment
The guardian is required to visit its wards four times each year and to otherwise fulfill the duties of a guardian as set forth in the Probate Act whether OSG is the guardian of the person or the estate, or both.
When OSG is guardian of the person, the guardian also does the following:
1) Evaluates the needs of the ward for housing, financial support, professional services, medical care, comfort and education;
2) Takes steps to satisfy the needs of the ward;
3) Decides whether the ward should receive services or participate in activities; and
4) Enforces the ward’s legal rights.
When OSG is guardian of the estate, the guardian also does the following:
1) Investigates and collects money and assets of the ward;
2) Pays bills out of the ward’s estate;
3) Protects and manages the ward’s assets;
4) Enters into and completes the ward’s contracts; and
5) Represents the ward in legal proceedings, unless another person is appointed.
The Office of State Guardian is an Advocate of its Ward
The mission of the OSG is to make decisions by an appointed guardian on behalf of a ward by conforming as closely as possible to what the ward, if competent, would have done or intended under the circumstances. If the ward’s wishes are unknown and remain unknown after reasonable efforts to discern them, decisions shall be made on the basis of the ward’s best interests. The Office of State Guardian, like any other guardian, has a legal responsibility to seek the best interests of its wars. This may mean dealing with individuals or institutions, public or private, to defend the rights of a ward or to obtain services which are due. However, in cases where the ward and the Office of State Guardian do not agree on what is in the ward’ s best interest, the Office of State Guardian takes steps to obtain an advocate independent of IGAC to assert the ward’s wishes.
The Cost of Service from the Office of State Guardia
There is no charge involved in making a referral. If proceedings for the appointment of a guardian are begun in court, the cost of the guardian ad litem may be levied against the assets of the person with disabilities. However, the court may order a petitioner to pay for the guardian ad litem when the petitioner is deemed indigent. Once the person with disabilities has become a ward of the Office of State Guardian, any ward who has assets can be charged a fee for the Office of State Guardian’s services. The fees are determined on a sliding scale basis, pursuant to the Illinois Administrative Code.