Disabled Adults

Guardianships

Matlin & Associates, P.C. — Northbrook, Illinois

Unless rights are legally terminated, parents are guardians of any child who has not yet reached the age of majority, usually 18 years old. Once a child becomes a legal adult, then regardless of maturity level and ability to cope with life (and absent incarceration or other legally imposed restraints), he has the right to make decisions about himself.

Guardianship removes such rights. It's not a decision to be taken lightly. It can be costly and complicated. There are less invasive procedures that can often accomplish the same goals. Once filed, a guardianship petition may not be withdrawn without leave of court.

Guardianship won't be granted just because a person is elderly or has some special issues that impair the senses or just because he is prone to poor decision-making. It requires an adult who is incapacitated to the degree that he is unable to safely or responsibly manage personal and/or financial affairs due to a mental, physical or developmental disability. It is utilized only to the extent necessary to protect a disabled person from neglect, exploitation or abuse and to maximize his self-reliance, independence and general quality of life.

The guardianship process begins when an "interested person", who can be the disabled person himself, but is usually (though not always) a close family member or friend, alleges incapacity in a petition filed with the probate court. If the court rules in favor of the interested person, known by the court as the "petitioner", it will appoint a guardian to provide needed assistance to the alleged disabled person. Once declared incompetent, the alleged disabled person is known by the court as the "ward".

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Different Types of Guardianship

The court can grant various types and degrees of guardianship depending upon the circumstances. A "plenary" guardianship puts the guardian in control of all aspects of a ward's life. Plenary guardianship will only be granted when the court, based on thorough examinations, reports and other evidence, determines via "clear and convincing evidence" that the ward is unable to make or communicate responsible decisions for himself.

There are two types of plenary guardianships.

1. Plenary "guardianship of the person" confers personal, physical and life-style decision-making authority over the ward, such as where he lives and issues relating to health care. It addresses education, social, rehabilitative, vocational training and other needs. If granted, the court may require periodic reporting regarding the health, progress and overall status of the ward. If possible, the guardian of the person is required to do what he or she believes the ward would want done under circumstances, taking into consideration previously expressed personal opinions and preferences, religious and moral and moral beliefs.
2. Plenary "guardianship of the estate" confers authority over the ward's finances. It relates to the ward's inability to make or communicate responsible decisions regarding the management of assets, income, and other financial matters. Guardianship of the estate may also be granted when "gambling, idleness, debauchery or excessive use of intoxicants or drugs" causes the alleged disabled persons to "expose himself or his family to want or suffering."

The guardian of the estate makes day-to-day decisions about the ward's funds and safeguards the ward's income and assets. Estate guardians must file periodic asset inventories, receipts and disbursements to the court, which maintains overall supervision. There are very specific rules governing how a ward's assets are invested. The guardian may be held accountable for assets improperly invested or disbursed.

The court can grant guardianship over either the estate or the person or both. It can name the same or different guardians to fill the jobs. If there is no person appropriate for the guardianship job, the court can name a county Public Guardian, the Office of State Guardian or a private agency. An agency which is directly providing residential services cannot be guardian.

Besides plenary guardianship, the court has the flexibility to tailor a guardian's role to fit the ward's needs, limiting authority to specified matters, such as bill-paying or hiring day nurses.

The Legal Process

The petition is the first step taken when initiating a guardianship. The petition includes basic information about the person alleged to be in need of guardianship (now known by the court as the "respondent"): name, date of birth, address, name and address of family members and other pertinent items. Accompanying the petition is a report that includes a physician's description of the respondent's physical and mental capacity along with relevant evaluations which would enable the judge to determine the type of guardianship needed.

The petitioner pays fees for filing, sheriff's fees for the service of summons on the alleged disabled person and, usually, attorney's fees. Notice is sent to appropriate relatives. The petitioner may also have to pay for the services of an examining physician who prepares a medical report on the respondent and the fee of a guardian ad litem, who the court may appoint. If the respondent has funds, the court may direct payment or reimbursement from his assets.

After filing, the respondent, must be served with summons and a copy of the petition and a hearing is set within 30 days. After an initial hearing, that time constraint may be continued for any number of reasons, though once the process starts it usually moves swiftly compared to other court matters that can drag on for years.

The court will appoint a guardian ad litem ("GAL") prior to the hearing if it determines one is needed. In almost all cases, a GAL will be appointed if the respondent is not expected to appear in court. The GAL is usually (though not always) a lawyer, who acts as the "eyes and ears" of the court. The GAL interviews the respondent and others close to the respondent, informs the respondent of his legal rights and performs an appropriate investigation.

The GAL report to the court includes information regarding the condition of the respondent and makes recommendations as to the type of guardianship needed,, if any, based upon the best interests of the respondent. If the respondent disagrees with the GAL or opposes the need for guardianship, he has the right to hire his own lawyer to fight the petition. If he can't afford a lawyer, the court will appoint one.

At the hearing, evidence about the respondent's health, mental faculties, finances and lifestyle is presented. The respondent may demand a jury trial, present and cross-examine witnesses and introduce other evidence. The respondent has the right to select his own physician to testify. The hearing is always a public proceeding and it can become a public spectacle if there are contentious issues.

Ultimately, the court or jury reviews all the information presented and either enters a limited or plenary guardianship order or finds that no guardianship is warranted.

Between the time that a petition is filed and the conclusion of the court hearing, a temporary guardianship, lasting no more than 60 days, may be granted by the court. The court will only grant temporary guardianship as a short-term remedy if there is a demonstrable emergency and that the alleged disabled person will suffer harm if it is not immediately enacted.

Using the proper form, a court-appointed permanent guardian may appoint a standby guardian who would be poised to act in case the guardian becomes unable or unwilling to do so. The court will rule upon the standby guardian appointment at a hearing using much of the same procedures and criteria as are used in the original appointment. At the time when the standby guardian's services go into effect, his appointment is temporary, lasting no more than 60 days. During that timeframe, the entire guardianship court procedure will be re-enacted.

A short-term guardian may be appointed by the court-appointed permanent guardian to temporarily take over during brief periods where the permanent guardian is unable to perform his or her duties. A short-term guardianship appointment may be made using a statutory form. The court does not need to be involved, but the appointment can not be effective for more than 60 days in any 12 month period. Also, the ward must be consulted and be given an opportunity to state a preference as to who should act. If the ward or someone close to the ward objects, a petition may be filed leading to another new round of hearings.

A petition for modification or termination of a permanent or temporary guardianship can be filed at any time. Based upon new information, the court may terminate any guardianship, modify a guardian's duties and change the guardian. In all cases, the court will do what the judge feels is in the ward's best interests.