Guardianship
should only be used when all other options are exhausted. SGS
is committed to educating individuals, professionals and the
public on guardianship and alternatives to guardianship. SGS
is available to medical professionals, attorneys, elder care
specialists, individuals and their families for consultation
on reviewing options, including guardianship.
Guardianship:
What is it? When is it needed?
A guardian is one
who is entrusted by law for the care of another person or his/her
estate or both. One who guards, protects, or preserves...
The law generally presumes that an adult eighteen years of
age or older is capable of handling his/her own affairs. A
guardian may be appointed as a substitute decision maker if
a person is disabled because of:
- Mental deterioration
- Physical incapacity
- Mental illness
- Developmental
disability
The disability must
prevent the person from making and communicating responsible
decisions about his/her personal affairs.
Are
There Different Types of Guardians?
- Limited Guardianship:
when the person with disabilities can make some, but not
all, decisions regarding his/her person and/or estate. The
powers of a limited guardian must be specifically listed
in the court order. It may be a limited guardian of the estate,
the person, or both.
- Plenary Guardianship:
used when 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.
- Guardianship
of the Person: because of the disability, lacks sufficient
understanding or capacity to make or communicate responsible
decisions regarding the care of his/her person.
- Guardian of
the Estate: used when the person because of the disability
is unable to manage his estate of financial affairs.
- Temporary Guardian:
used in an emergency situation and can last no longer than
60 days and evidence must be shown for the need of immediate
protection.
Who
Can be Guardian?
The Guardian should be:
- Over the age of
18
- Capable of discharging
duties
- Not convicted of
a felony
- Not a service provider
of the ward
- Not an employee
of a service provider of a ward
- Not a creditor
of a ward
Alternatives
to Family and Friends
when family is unwilling, unable, or unfit to serve:
- Office of State
Guardian:
assets valuing less than $25,000. Fees for service are
charged to the estate.
- Office of Public
Guardian:
assets valuing more than $25,000. Fees for service are
charged to the estate.
- Not-for-Profit
services such as Surrogate Guardian Services, Inc.:
Fees for service are charged to the estate.
- Private Individuals:
Attorneys, Care Managers, or friends. Fees for service are
charged to the estate.
Can
Guardianship be Used in the Case of an Emergency?
Yes, when the court determines that emergency protection is warranted,
a temporary guardian may be appointed. 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. In determining the necessity
for temporary guardianship, the immediate welfare and protection
of the alleged disabled person and his/her 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.
How
Long Does the Guardianship Process Take?
Temporary guardianship can be obtained quickly, even within 24
hours. The length of time required for the process when an emergency
does not exist depends upon the availability of the information
necessary for the preparation of court papers, the availability
of the judge, the type of notice required to satisfy the Constitution
under the circumstances of the case, and the existence of complicating
factors, such as disagreement among interested parties, controversial
issues, etc. Once the case is filed, it usually takes from 14
days 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.
What
is the Cost of Guardianship and
Who
Pays For It?
- The fees are
charged to the estate of the alleged disabled person.
- The fees include
the court costs, court filing fees, attorney's fees, the
Guardian ad Litem, Care or Case Management as necessary.
- Guardianships
that are not contested go very smoothly and the costs are
minimized.
- Guardianships
that are contested can be quite costly. Minimizing court
time is key to managing costs.
- The court requires
an annual report for the estate and person.
The
Process of Obtaining Guardianship in Illinois:
Preliminary
Steps:
Before starting a court proceeding, one must obtain a report
certifying the person is disabled and needs a guardian.
- Preprinted forms
can be obtained from the Probate Clerk in the county where
the guardianship proceeding will take place.
- The report needs
to be signed by a licensed physician or psychologist who
is familiar with the person with disabilities. The licensed
professional must determine if the person is partially
or totally incapable of making financial and/or personal
decisions.
- A description
of the nature and respondent's disability must be
included as well as how it impacts on his/her welfare.
- An analysis
and results of evaluations of mental and physical
condition within 3 months of the date of filing
the petition.
- An opinion
as to whether guardianship is needed and reasons
thereto.
- A recommendation
as to the most suitable living arrangement and, when
appropriate, treatment or habilitation plan.
- Original
signature of person performing evaluation and
qualifying credentials.
Attorney
Representation and Other Protections:
- The advice of
legal counsel may be beneficial.
- A person facing
guardianship has the right to a court appointed attorney.
- An individual
facing guardianship has the right to request an independent
medical evaluation.
Guardian
ad Litem:
- A court appointed
private attorney or trained professional is charged with
independently advising the court concerning the apparent
need for the guardianship.
- The court will
allow the Guardian ad Litem (GAL) reasonable compensation
that is charged to the estate of the potential ward.
- The GAL will
meet the respondent and tell him/her about the pending
guardianship proceedings.
- Will determine
the respondent's position.
- Files a written
report and appears and testifies concerning the appropriateness
of guardianship.
Preparation
for Court:
- Petition -
the official request for appointment of a guardian.
- Report of
Physician or Psychologist
- Rights Notice -
a summary of the respondent's rights.
- Summons -
the office notice to the person with disabilities of the
guardianship proceedings.
- Notice 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.
This is so they can appear in court if they so wish.
- Order -
a proposed order for the court to sign if it is determined
that the guardianship is warranted.
- Oath -
the official agreement of the appointed guardian to serve
as guardian.
- Bond -
a promise to be responsible for the 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. A corporate guardian does
not require a bond (ex: Bank)
- Statement -
Right to Discharge Guardian or Modify Guardianship Order.
(not required in all counties) It explains to the ward
their rights.
- Order -
for a Guardian ad Litem (GAL) to protect the interests
of the alleged persons with disabilities in the guardianship
proceedings.
Court
Procedures
The petition is filed with the Probate Court, usually along with
the report of the physician. There is a filing fee. The sheriff
or a process server delivers the summons and the petition to
the person with disabilities. The petition is also sent to all
interested parties. A hearing date is set usually within 30
days. At the guardianship hearing it may be necessary to
have at least one witness to testify in support of, or need for
the guardianship. The alleged person with disabilities is entitled
to attend the hearing.
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