In Illinois, a guardianship matter can be opened for a disabled adult or a minor, who is then referred to as the Ward. Guardianship law is designed to protect those who are not capable of handling their own affairs and caring for themselves due to disability and/or age. A guardian is charged with the support, care, comfort, health, education and maintenance of the Ward. A guardian may also have the authority to care for, manage, and invest the Ward’s assets.
Providing for the protection and care of a loved one may be a daunting task. You may be initially unsure as to whether guardianship is necessary. Even once guardianship is obtained, you may be unsure as to the level of care required and how to manage assets. Whether the guardianship matter is considered simple or complex and contested, we can assist with all aspects of guardianship.
Adult Guardianship in Chicago, IL
Adult guardianship is the legal process whereby a person lacking capacity is adjudicated as a disabled adult, and a guardian is appointed for the adult with a disability. An individual or an institution (such as a bank or a care management team) can be appointed for a disabled adult. A guardian may be appointed as Guardian of the Estate, Guardian of the Person, or both the Guardian of the Estate and Person.
A Guardian of the Estate is tasked with the responsibility of managing the financial affairs of the disabled adult. A Guardian of the Estate is limited by court approval as to how finances of the disabled adult may be spent, as they may only be used in the best interests of the disabled adult. A Guardian of the Estate is necessary when the disabled adult becomes incapable of managing his or her estate or financial affairs. Initially, a Guardian of the Estate will be required to inventory assets and create a budget requiring court approval.
A Guardian of the Person is tasked with the responsibility of caring for a disabled adult, which can include providing and coordinating for food, clothing, housing, medical treatment, education, and day-to-day care. A Guardian of the Person becomes necessary when the disabled adult lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his or her own care. While they sometimes do, it’s not required for a Guardian of the Person to live with the disabled person and perform the everyday care and support.
If you believe a loved one is in need of guardianship due to a disability, it is important to understand all the duties that befalls a guardian. Deciding to become a guardian is serious and the role can seem daunting. We can assist by beginning that conversation, as well as with the appointment process and ongoing representation through the guardianship process.
Minor Guardianship in Chicago, IL
Minor guardianship is the legal process by which a guardian, who can be an individual or institution, is appointed for a minor. A Guardian may be appointed as Guardian of the Estate, Guardian of the Person, or both the Guardian of the Estate and Person.
A Guardian of the Estate for a minor is appointed when the minor has assets, such as when the minor receives an inheritance or is a beneficiary of an account. A Guardian of the Estate for a minor is tasked with the care, management, and investment of the minor’s estate. A Guardian of the Estate may also be appointed in the case where a child suffers and injury, when his or her parent wants to proceed in filing a claim against the person who caused the harm.
A Guardian of the Person for a minor is appointed when the minor has no parent or current guardian available to care for him or her. This often occurs when the minor’s parents are deceased, or the minor’s parents are unable and unwilling to care for the minor. A Guardian of the Estate for a minor is tasked with the custody, nurture, tuition, and education of the minor.
Deciding to become a guardian for a minor involves proving to the court that you are able to care for the minor, including getting background checks and consenting to checks by the Department of Children and Family Services. Each dollar the minor receives or expends needs to be accounted for. We can assist with every aspect of the process from the appointment to receiving funds to setting up care for the minor.
Contested Guardianship Matters
In some guardianship matters, the appointment of a guardian can be contested by other family members, by the alleged disabled adult, or even by an older minor. These matters can become complicated and may involve several court hearings and a trial to determine whether guardianship is necessary and who is the appropriate guardian. The Court may even implement extra measures, such as appointing a guardian ad litem, to assist in that determination.
In other cases, you may feel that the guardian is acting inappropriately and must be held accountable for his or her actions. We can assist with investigating the alleged wrongdoings, filing complaints in court, discussing settlements, and appearing at court hearings. Recourse may involve recovering assets and removal of a guardian.
Whatever the goal may be, we will take the necessary legal action to protect the right and well-being of the Ward.
Financial Exploitation and Elder Abuse
Unfortunately, sometimes caregivers entrusted with an elderly person’s care and/or property abuse their positions. Financial exploitation and elder abuse may involve a caregiver, guardian, family member, nursing home staff member, or even complete strangers financially, physically, sexually, psychologically harming or neglecting an elderly person.
If you suspect a loved one is being abused or exploited, there is legal recourse and protection available. The process of obtaining such protecting can be complicated, but we can assist and work fast to protect your loved one from further abuse while we can continue working on recovering assets and seeking accountability for the abuser.
Cases with a Guardian ad litem
You are seeking to be appointed as the guardian for a disabled adult or minor, but another person or the alleged disabled adult is contesting your appointment. Perhaps, you are already appointed as the guardian, but the Court has concerns regarding the Ward’s well-being or assets. In these cases, the Court will often appoint a guardian ad litem.
In Illinois, a Guardian ad litem is an objective, third party attorney that is appointed by the Court to represent the best interests of the Ward. The Guardian ad litem acts as the eyes and ears of the judge, and in doing so will investigate all aspects of the Ward’s life.
Our attorneys are often appointed by the Court to act as a Guardian ad litem and work with many others on several cases, so we can help navigate the additional oversight. The key to remember is that the ultimate purpose of a guardian ad litem is to ensure the best interests of the Ward.
Relevant Illinois Statutes:
Illinois Probate Act: https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2104
Illinois Financial Exploitation of the Elderly Act: 720 ILCS 5/17-56 (ilga.gov)
Illinois Mental Health and Developmental Disabilities Code: https://ilga.gov/legislation/ilcs/ilcs5.asp?ActID=1496
Frequently Asked Questions
How long does it take to be appointed as a guardian for a disabled adult in Cook County, IL?
If there’s a true emergency (such as a stroke, car accident, or a senior who is sick and in the hospital), it may be possible to petition for an order appointing a temporary guardian right away; sometimes, this can be done in a matter of days. Typically, a plenary (meaning permanent) guardianship proceeding takes at least 6 weeks before you can be appointed as a guardian.
How long does an adult guardianship matter last in Illinois?
Once a guardianship matter is opened for a disabled adult in Illinois, it can only end in one of two ways:
- Upon the death of the Ward.
- Upon the termination of the adjudication of the Ward’s disability. The Ward (or even the Guardian) may petition for the termination of the adjudication of the Ward’s disability and the Court may grant such petition, thereby finding that guardianship is no longer necessary.
For a minor, guardianship of the person will remain open until the minor reaches the age of 18 or until the minor is returned to the custody of the minor’s living parent(s), pending approval from the Court. If guardianship of the estate was only obtained to receive assets, the guardianship matter can close once all the assets are deposited into a restricted account for the minor.
What is the difference between a Power of Attorney and guardianship?
In Illinois, there are two types of Power of Attorney: Power of Attorney for Healthcare and Power of Attorney for Property. A Power of Attorney for Healthcare is a legal document whereby an individual empowers another to make medical decisions on his or her behalf and access medical records. A Power of Attorney for Property is a legal document in which a person empowers another individual to manage and access his or her property.
As previously noted, guardianship has strict court oversight and can offer a much higher level of protection for a disabled adult. Guardianships also carry more authority with institutions, such as hospitals and banks since they are validated by a Court. With the power of the Court, a guardian can typically get more authority to take swift action on behalf of a disabled person.
A Power of Attorney is created by the disabled adult prior to disability, so he or she has full control over who is named as agent and the powers given to the agent. There is also very little oversight, so people are often tempted by the lower cost. However, it can afford less protection to the disabled adult and can be easily abused or manipulated. The real question as to whether you need to pursue guardianship over drafting powers of attorney is whether someone is cognitively disabled; this will likely need to be addressed by a physician.
I or another individual has a Power of Attorney; do I still need guardianship?
The short answer is, maybe. A guardianship likely is not needed if (1) there is a validly executed Power of Attorney; (2) the named agent is acting appropriately and within his or her given powers; and (3) the terms of the Power of Attorney allow the acting agent to fully meet the needs of the disabled adult and his or her estate.
Oftentimes an individual other than the Power of Attorney agent will seek guardianship because the agent is acting inappropriately, or because additional powers are needed to provide appropriate care for the Ward or to appropriately manage the Ward’s estate.
Who can become a guardian?
An individual or institution, such as a bank or care management team, can become a guardian. An individual qualified to act as a guardian must be over the age of 18 years, be a resident of the United States, not be of unsound mind, not be an adjudged person with a disability, and not be convicted of a felony.
Can I become a guardian without an attorney?
If you are seeking to be appointed solely as guardian of the person for a disabled adult or minor, you do not need an attorney. If you are seeking to be appointed as guardian of the estate for a disabled adult or minor, you are required to be represented by an attorney. Here is a link for more information on how to become appointed solely as guardian of the person (but remember, this authority will be restricted as to only “personal” rather than “financial” powers): The Guardianship Process – Office of State Guardian (illinois.gov).
Can multiple people become guardians for one person?
Yes, multiple people and/or institutions can be co-guardians of both the estate and person. Another potential strategy is to have one person named as guardian of the person, while the other serve as guardian of the estate.
What are the different types of guardianship in Illinois?
– gives the guardian all rights and duties on behalf of the Ward and is considered a “permanent” guardianship.
Occurs prior to the appointment of a plenary guardian when it is necessary for the immediate welfare and protection of the Ward. A temporary guardian has limited powers and duties that are specifically enumerated by the Court.
Gives the guardian limited powers and duties on behalf of the Ward that are specifically enumerated the Court. A limited guardian is appointed for a Ward that is still able to manage some aspect of his or her affairs or care.
Gives an individual the powers of the guardian for a short-term period when the guardian is unable to fulfill his or her own duties. In the case of a minor, a short-term guardian may be executed by a parent to nominate someone to care for the minor for a period of time when the parent is unable.
Most often used in the case of minors. Parents will nominate someone else to become the guardian of their child in the event of their death or in the event they are no longer willing and able to take care of their child. Here is a link to be able to review and fill this form out yourself: CFS 444-2 Appointment of Short-Term Guardian (illinois.gov)