Whether your disabled child has just turned 18 and is unable to make health, financial, and life decisions, or an aging family member suddenly loses capacity due to illness or injury, swift action is needed to protect their interests and well-being. For families with adult loved ones who cannot make their own life decisions, guardianship offers a solution to protect their health and finances.
However in Illinois, the legal guardianship process is complex and often requires help from a legal partner deeply familiar with the court process for guardianship.
At Hays Firm, we specialize in probate and guardianship law. We’ve helped countless families in greater Chicago understand the types of guardianship and the rights of the ward under guardianship, so they can effectively step in to provide both health and financial care for their loved ones.
Today, we offer an in-depth look at the court process for guardianship, including how to file a Petition for Guardianship, and how to choose a suitable guardian. Our goal is to give you the knowledge you need to ensure the safety and care of your loved one, and when to seek experienced counsel for legal guardianship.
Understanding Legal Guardianship in Illinois
Legal guardianship is the process of appointing one person, the Guardian, to make personal and financial decisions on behalf of another person, the Ward, who has been legally determined to lack the capacity to make these important decisions for themselves.
Guardianship is a serious legal distinction and is not entered into lightly. In Illinois, guardianship law is dictated by the Illinois Probate Act of 1975. This law ensures that guardianship is entered into only as a last resort, and that disabled individuals maintain the maximum possible independence.
Types of Guardianship in Illinois
Not all persons with disabilities require the same level of personal and financial support. Therefore, there are two primary types of guardianship:
- Guardianship of the Person: This type of guardianship grants authority to make decisions regarding the Ward’s medical and mental health treatment, their living arrangements, and day to day care and support.
- Guardianship of the Estate: This type of guardianship grants authority to make financial decisions, including paying bills, managing income, investments, and assets, as well as filing tax returns and applying for government benefits such as Medicaid or SSI.
In Illinois, courts consider the individual’s complete set of needs, and can assign either Limited guardianship or Plenary guardianship.
- Limited Guardianship: This is the preferred solution for the ward to retain as much independence as possible. Limited guardianship restricts the guardian’s powers only to those necessary to fill the areas where the ward is unable to function by themselves. For example, the court may appoint a limited guardian of the estate to manage finances, but allow the ward to retain control over their own living arrangements and daily life decisions.
- Plenary Guardianship: This type of guardianship is the most restrictive, granting all powers available for the person and/or the estate. This is typically reserved for individuals with severe incapacitation who cannot otherwise make the health and financial decisions needed to live independently.
The Court Process for Guardianship
In Chicago, obtaining adult guardianship is a formal legal process that must pass through Cook County Probate court.
While the process is not quick, it is designed to prevent abuse, and ensure that guardianship is absolutely essential to the health and well-being of the Ward. However, experienced legal counsel is often necessary to avoid delays and speed up the process to the extent possible.
How to File a Petition for Guardianship
The court process for guardianship begins with filing a formal Petition for Guardianship by a trusted person in the Ward’s life.
Successfully filing a petition requires several steps:
- Obtain a Valid Physician’s Report: The Illinois Probate Act requires a report from a licensed physician detailing the nature and extent of the ward’s disability. It must include an assessment of the individual’s decision making capacity and need for guardianship. This document must be signed within 90 days of the petition’s filing date. Without this, the process for legal guardianship cannot proceed.
- Gather Ward’s Information: A detailed listing of the immediate family members of the ward, and the details of the Ward’s assets and income is required.
- Notice and Summons: Once the petition is filed, the Alleged Person with a Disability and all interested parties must be formally notified of the proceedings.
- Appointment of a Guardian Ad Litem (GAL): An attorney is appointed by the court, the Guardian Ad Litem, to investigate the case. Their role is to gather information by meeting the disabled adult, interviewing their family members, reviewing medical reports, and ultimately compiling a report to the judge recommending whether or not guardianship is necessary, and to what degree.
- Mandatory Court Hearing: Once all the evidence has been gathered, the judge will review everything and make a final decision. The person being considered for wardship has the right to be present and retain an attorney to object to the proceedings.
If the court finds by clear and convincing evidence that the individual with a disability is unable to manage either their estate, their personal matters, or both, the judge will issue an Order of Appointment. The Guardian is then issued a legal document known as a Letter of Office that confirms their authority.
How to Choose a Suitable Guardian
Choosing a suitable guardian for your loved one is a significant decision that must be taken seriously.
While the person who files the petition for guardianship often nominates themselves or another relative to serve as Guardian, ultimately the court will appoint the person they believe will serve in the best interest of the Ward.
So how do you choose a suitable Guardian? Keep these key factors in mind:
- Capacity: A Guardian must be at least 18 years old, a U.S. resident, and be of sound mind. They must also not have any disqualifying criminal history, such as a felony conviction.
- Willingness to Serve: Potential Guardians must also be willing to serve in this role. The role cannot be forced on anyone, and they must also be capable of providing an active and suitable guardianship.
- Relationship: Guardianship preference is given to the closest family members, such as parents or siblings. However, Guardians do not have to exclusively be family members. Anyone with a close, personal relationship with the Ward and a history and desire to act in their best interest can be considered.
- Conflicts of Interest: Conflicts of interest, such as when the proposed Guardian owes the Ward a significant sum of money, can disqualify their candidacy as Guardian of Estate.
- Standby Guardians: Because guardianship requires a commitment that can last decades, a Standby Guardian is often nominated in the petition. This person can step in if the initial Guardian resigns, becomes incapacitated themselves, or passes away. A Standby Guardian can be called upon to ensure the Ward’s life is not disrupted by emergency court proceedings to name another Guardian.
Because Guardianship significantly impacts the Wards independence, it’s important to consider less restrictive alternatives when choosing a Guardian.
Estate planning documents like Durable Power of Attorney for Healthcare and Durable Power of Attorney for property are options that can be used to delegate authority without court intervention, while still allowing the Ward to retain a measure of independence.
Consulting with an experienced Probate and Estate law firm like Hays Firm can help you determine the best course of action for your loved one’s needs.
The Rights of the Ward Under Guardianship
As noted earlier, Guardianship is often seen as a last resort because of the severe restriction of the Ward’s independence. However, the Ward still does hold significant rights, even when they are deemed unable to make personal and financial decisions for themselves.
Illinois guardianship law is meant to ensure that the Ward retains all rights not specifically limited by the court. That means the Guardian should not overstep their bounds to act in ways that are not commensurate with the court’s direction for their assistance.
In Illinois the Ward retains:
- The Right to Dignity and Self Determination: The Guardian has a legal responsibility to make decisions that conform to the Ward’s current preferences and give substantial weight to what the Ward would have done, if competent.
- Right to Petition the Court: The Ward can seek to terminate the Guardianship at any time, if they believe they have regained capacity. They can also ask the court to modify the scope of the guardianship, or request that a Guardian be removed due to failure to perform duties or abuse.
- Right to Annual Review: An annual report that details the Ward’s condition and living arrangements must be filed with the court for Guardians of the Person. Guardians of the Estate must file an annual accounting report that shows the court that the Ward’s funds were spent in their best interest.
- Personal Rights: The Ward retains the right to make decisions that are not specifically covered by the guardianship role, including marrying, voting, and creating a will.
Retaining these key rights protects the Ward from exploitation and abuse.
Hays Firm Can Help You Protect Your Loved One with Legal Guardianship
Navigating the court process for guardianship without experienced legal counsel is a long and difficult process. With our extensive knowledge of Illinois guardianship law, Hays Firm can facilitate the process so you can ensure your loved one’s future.
Without proper legal help, a single mistake in filing your petition for guardianship, or selecting the wrong type of guardianship can lead to months of delays and legal fees.
Hays Firm is here to guide Chicago-area families through every step of the court process for guardianship, so you can be sure your adult loved ones with disabilities are properly looked after, both physically and financially.
Don’t wait to secure the care and protection your loved one needs. Contact Hays Firm today for a confidential consultation.
*Disclaimer:*
This blog is intended for general information purposes only and does not constitute legal advice. Reading this article or contacting Hays Firm does not create an attorney-client relationship. For advice specific to your situation, consult with a qualified legal professional in your area.
