WHT Law

Guardianship Issues

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Guardianship Issues

Procedures for petitioning adult guardianship in Illinois are statutory and can be found in the Illinois Probate Act.

Person with a disability: person 18 years or older who 1) because of mental deterioration or physical incapacity is not fully able to manage his or her person or estate, or 2) is a person with mental illness or developmental disability and who because of mental illness or developmental disability is not fully able to manage his or her person or estate, or 3) because of gambling, idleness, debauchery or excessive use of intoxicants or drugs, so spends or wastes his or her estate as to expose the person with disability or dependents to want or suffering.

A plenary guardianship can be of the person, of the estate or both:

Person guardianship

In determining a need for person guardianship, two prominent issues are medical decision making and residential placement. If a person is unable to give informed medical consent or make appropriate decisions about living independently in a residence, person guardianship should be considered.

Estate guardianship

Estate guardianship is necessary where a person, due to some disability, cannot manage financial affairs. However, courts are generally reluctant to appoint plenary estate guardians where estate assets are minimal. Pensions, public benefits and similar entitlements can be handled with representative payeeships. Bill paying assistance and money management assistance programs should also be considered. Small estate amounts can be collected and disbursed, without resort to estate administration. Some courts encourage the use of small estate affidavits under Section 25‑2, and court‑supervised deposits of wards’ funds under Section 24‑21 as alternatives to estate guar­dianship. However, many downstate judges are not at all reluctant to appoint estate guardians in small or minimal estates.

In addition to the plenary guardianship, a limited guardianship is available through statute but not commonly utilized in Cook County:

Limited guardianship

In a limited guardianship situation, a person lacks some, but not all of the capacity to make personal decisions or handle an estate. Under Section 11a-14(c), the appointment of a limited guardian is not a finding of legal incompetence. Limited guardianship is intended to be less intrusive and more individualized than plenary guardianship. Although guardianship is supposed to be used only to the extent necessitated by a person’s actual mental, physical and adaptive limitations (section 11a-3(b)), courts tend to create plenary guardianship rather than limited guardianship, even where limited guardianship may arguably be more appropriate.

One reason for the bias toward plenary guardianship is that the creation of an appropriate limited guardianship is complicated when compared to plenary guardianship. A physician must clearly differentiate between those things a person can and cannot do and must clearly describe these things to the court. The court must then determine which of these rights will be taken from the person with disability, considering the practical consequences for each. The limited guardianship must be understandable to the guardian, ward and third parties who may rely on the order. Not all guardianship practitioners, medical practitioners and courts are able to design an appropriate, useful limited guardianship order.

Guardianship is to be utilized to promote the well-being of a person with a disability and to protect against neglect, exploitation, or abuse and to encourage development of maximum self-reliance and independence. However, where an adequate trust or representative payeeship is in place, estate guardianship may be unnecessary.

Powers and duties of a guardian:

Personal guardian: § 11a-17. Duties of personal guardian. (a) To the extent ordered by the court and under the direction of the court, the guardian of the person shall have custody of the ward and the ward’s minor and adult dependent children; shall procure for them and shall make provision for their support, care, comfort, health, education and maintenance and such professional services as are appropriate…. The guardian shall assist the ward in the development of maximum self-reliance and independence. The guardian of the person may petition the court for an order directing the guardian of the estate to pay an amount periodically for the provision of the services specified by the court order….

Estate guardian:

Section 11a-18, are summarized as follows:

(a) To the extent specified in the order establishing the guardianship, the guardian of the estate shall have the care, management and investment of the estate, shall manage the estate frugally and shall apply the income and principal of the estate so far as necessary for the comfort and suitable support and education of the ward, his minor and adult dependent children, and persons related by blood or marriage who are dependent upon or entitled to support from him, or for any other purpose which the court deems to be for the best interests of the ward, and the court may approve the making on behalf of the ward of such agreements as the court determines to be for the ward’s best interests. The guardian may make disbursement of his ward’s funds and estate directly to the ward or their distributee or in such other manner and in such amounts as the court directs.

(b) Upon the direction of the court which issued his letters, a guardian may perform the contracts of his ward which were legally subsisting at the time of the commencement of the ward’s disability. The court may authorize the guardian to execute and deliver any bill of sale, deed or other instrument.

(c) The guardian of the estate of a ward shall appear for and represent the ward in all legal proceedings unless another person is appointed for that purpose as guardian or next friend.

Guardianship Process

Costs

Fees in adult guardianship cases are generally paid by the petitioning party, or, subject to court approval, from the estate of the person with disability. Petitioning costs in Cook County are $50 for filing for person only guardianship, $70 for estates up to $15,000 and $105 for estates in excess of $15,000. Sheriff’s fees are $23 plus $.40 per mile for service of the petition and guardianship summons on the respondent. Filing fees will go up slightly after December 1, 2002. Surety bonds for estate assets (required only in estate guardianships) start out at $50 per year for $8,000 of coverage. Surety bonds must be obtained from authorized writers.

In addition, the expense of a guardian ad litem typically runs in the $­200 ‑ 400 dollar range for routine cases. However, not all guardianship cases require a guardian ad litem. Fees may also be incurred for expert witnesses or appraisals of property, but usually only in contested cases. Attorney and guardian ad litem fees are typically approved by the court, and may be paid from the estate of the person with disability. In cases of indigence, attorney and guardian ad litem fees may be assessed against the petitioner, if the court approves. Section 11a-10© of the Probate Act details the court’s role in considering fee issues.

Guardians ad litem are expected to scrutinize the guardianship petition and Doctor’s report and gauge the appropriateness of an adjudication of disability. In that sense they act in the best interest of the alleged person with disability rather than as an advocate. Section 11a-10 indicates that a guardian ad litem is supposed to report to the court concerning the respondent’s best interests. Attorneys for petitioners in adjudication proceedings should understand the different roles of guardians ad litem, and expect the guardian ad litem to adopt the role outlined in Section 11a-10.

In Cook County, protocol requires the appointment of a guardian ad litem in all estate guardianships, and in person guardianships which might result in a physical intrusion (surgery or forced medication) or a denial of rights (involuntary placement or objection to guardianship by the respondent). Most downstate courts require the appointment of guardians ad litem in all cases except temporary guardianships (see Section VI, “Emergency Situations,” below), regardless of whether estate guardianship is at issue. The Probate Act does not require the appointment of a guardian ad litem where, in the discretion of the court, it is determined that an appointment is not necessary for the protection of the respondent or for a reasonably informed decision on the guardianship petition. Section 11a-10(a).

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, depending on the type of disability that is alleged in the petition. Section 11a-10(a).

Guardians ad litem typically visit the respondent, review available medical evidence (including the physician’s report), inform the respondent of statutory rights, and form an opinion as to the need for and extent of guardianship. Guardians ad litem may consult with experts qualified to work with persons with developmental disability, mental illness, physical disability or mental deterioration. Section 11a-10.

The guardian ad litem is required to attempt to elicit the respondent’s position concerning the adjudication of disability, the proposed guardian, any proposed change in residential placement, any changes in care that might result from the guardianship, and any other area of inquiry deemed appropriate by the court. At or before the hearing, the guardian ad litem must file a written report detailing his or her observations of the respondent, the responses of the respondent to any of the inquiries detailed herein, the opinion of the guardian ad litem or other professionals with whom the guardian ad litem consulted concerning the appropriateness of guardianship, and any other material issue discovered by the guardian ad litem. The guardian ad litem shall appear at the hearing and testify as to any issues presented in his or her report.

Petitions for guardianship

The guardianship petition is a statement, sworn to by the petitioner, that alleges a need for the appointment of a guardian for an alleged person with disability. The reason for guardianship, as stated in the petition, should conform to the actual diagnosis given in the physician’s report, and should also conform to the basic statutory criteria.

Acceptable statutory criteria include mental deterioration, physical incapacity, developmental disability or mental illness and an inability to manage personal or financial affairs due to such deterioration, incapacity, disability, or illness. Section 11a-2. A person’s status as elderly, frail, developmentally disabled or mentally ill, without proof of an inability to manage affairs, does not meet the statutory test.

Known relatives of the respondent should be listed as an Exhibit A to the petition, along with the names and addresses of any previously appointed guardians or agents acting under powers of attorney. Section 11a-8. Although friends of the respondent have no statutory right to notice, they should be afforded an opportunity to be heard, to demonstrate fairness and thoroughness to the court, if for no other reason.

Once filed, guardianship petitions may not be dismissed or withdrawn without leave of court. Section 11a-8. The allegations stated on the face of the petition necessarily suggest that a person is disabled and needs the assistance of a guardian. Courts are often reluctant to let a case be withdrawn without a showing of a change in circumstances or a written statement from a doctor explaining why guardianship is no longer needed. Before a guardianship petition is filed, care must be taken to ensure that a respondent meets the legal standard for guardianship and would benefit from guardianship.

Doctors reports

As medical reports are the foundation of guardianship petitions, careful scrutiny of the report is essential. In uncontested matters, the person who prepared the report is routinely excused from testifying. Section 11a-11(d). Accordingly, a report is often the major evidence considered by the court.

Summons

A guardianship summons is the legal notice physically served upon the respondent which advises of the time, date, and place of the guardianship hearing, the right to appointed counsel, the right to a jury trial, the right to request the appointment of an expert witness and other legal rights. The form of the notice is mandated by Sections 11a-10(e). The summons and a copy of the guardianship petition must be served not less than 14 days before the guardianship hearing. 11a-10(e).

An adjudication of disability cannot occur without proof of personal service on the respondent. Substitute service of a summons is not acceptable, despite its practicality. For example, the sheriff cannot leave a copy of the petition and summons with a nurse, social worker, or family member when the respondent is in a coma. A summons is usually served by the office of the sheriff of the county in which the respondent lives, but may be served by any individual over age 18 who is not a party to the guardianship proceeding.

Notice

A legal notice of motion and a copy of the petition must be sent by the petitioner to all persons whose names and addresses appear on the petition, at least 14 days before the hearing date. Section 11a-10(f). Notice need not be sent to the respondent (summons and a petition will be served) but the proposed guardian should get notice. The notice simply explains that a guardianship proceeding has been scheduled for a particular time and place, and advises that parties may appear and participate in the adjudication of disability.

Due Process

1. Appointment of counsel

A court may appoint an attorney to represent the respondent, if the court finds that the interests of the respondent will be best served by the appointment. A court must appoint counsel when the respondent requests representation or when the respondent takes a position averse to that of the guardian ad litem.

Requests for counsel by a respondent may be made by any oral or written means, either before or at the guardianship hearing. Section 11a‑10(b), 11a-11(a)

2. Jury trial

A respondent is entitled to a 6-person jury. The jury will determine the issue of disability after hearing evidence. 11a-11(a)

3. Independent experts

A respondent may request that the court appoint independent medical, psychiatric or other evaluations to attempt to refute allegations made by the experts retained by the petitioner. 11a-11©

4. Other rights

Respondents are absolutely entitled to appear at guardianship hearings, cross examine witnesses, and present evidence. Guardianship hearings may be closed to the public at the request of the respondent, guardian ad litem, or appointed counsel. 11a-11(a)

5. Quantum of Proof

The quantum of proof in contested guardianship proceedings is sometimes hard to determine. The Commission believes that most courts would follow a clear and convincing standard, although no particular standard is articulated in the law.

Uncontested cases

In an uncontested case, the court will focus on the physician’s report, and may even read the report into the court record. In many courts, the testimony of a witness familiar with the respondent, usually a person from the respondent’s residence or care facility, will testify concerning the need for guardianship.

If a guardian ad litem is appointed, a brief oral report discussing issues of importance may be made. The court will then rule, after considering the factors set out in Section 11a-11(e):

1. The nature and extent of the respondent’s general intellectual and physical functioning,

2. The extent of the impairment of the respondent’s adaptive behavior if the person is developmentally disabled, or the nature and severity of the person’s mental illness in the case of a person with mental illness,

3. The understanding and capacity of the respondent to make and communicate responsible personal decisions,

4. The capacity of the respondent to manage an estate and financial affairs,

5. The appropriateness of proposed and alternate living arrangements,

6. The impact of the disability upon the respondent’s functioning in the basic activities of daily living and the important decisions faced by the respondent or normally faced by adult members of the respondent’s community, and

7. Any other appropriate area of inquiry.

Contested cases

If the respondent appears and objects or if another objector steps forward, the court may set the case over to a future date for a contested hearing or appoint counsel for the respondent. Section 11a‑10(b). The respondent is entitled to legal representation, a 6-person jury and other due process, and is required to be present at the guardianship hearing absent a showing that the respondent refuses to be present or will suffer harm if required to attend. Section 11a-11(a). In practice, the respondent often does not appear at the guardianship hearing.

Orders of appointment

Illinois law creates no preferences or priorities as to whom is appointed guardian for a person with disability, other than the requirement that the court give due consideration to any preference of the respondent. Section 11a-12(d). Rather than affinity or the degree of relationship to the ward, the criterion used in selecting a guardian is the prospective guardian’s capability of providing an active and suitable program of guardianship for the ward. Section 11a-5(a).

Oaths and Bonds

Guardians are required to file an oath or a bond. Section 12‑2. Where a guardian of the person only is appointed, many courts routinely waive the filing of a bond, and a simple oath signifying the guardian’s acceptance of the office will suffice. Estate guardians are generally required to file either surety or non-surety bonds, and the courts have very little discretion in waiving or reducing bonds. Section 12‑6.

Statement of rights

After an adjudication of disability, the person with disability receives a statement which advises of statutory rights to modify or revoke the adjudication of disability. Section 11a-19. In Cook County, the statement is mailed by the court after the adjudication of disability.

Letters of office

Letters of office, which are certified proof of the guardian’s appointment, are usually issued by the Probate clerk within a day or two of the appointment and are mailed to the petitioner’s attorney or to the appointed guardian.

Termination/restoration of rights

Guardianship may be modified or terminated at any time under Section 11a-20,21, and guardians may be removed for the causes stated in Section 23-2. Unless revoked by the court, guardianship is a lifetime proposition, and survives the death of a guardian. Section 11a-15.

Civil Commitment under 405 ILCS 5/3-700

A person 18 years of age or older who is subject to involuntary admission may be admitted to a mental health facility upon court order pursuant to this Article.

A factual basis for the medical opinion upon which the decision to commit is based must be proven by clear and convincing evidence.

To meet its burden of proof the state must submit explicit medical testimony that the respondent can be expected to be a serious danger to himself or someone else because of his mental illness; mental illness alone will not justify commitment. People v. Orr, 176 Ill. App. 3d 498 (4th Dist. 1988).