Guardianship for Disabled Adults
Guardianship for adults may be necessary for an individual who is unable to make and communicate responsible decisions regarding personal care or finances due to a mental, physical or developmental disability. Courts ultimately determine the necessity of a legal guardian based on a thorough clinical evaluation and report.
The Illinois Probate Act gives the court the flexibility to tailor guardianship to meet the needs and capabilities of disabled persons. Depending on the decision-making capacity of the disabled person, the court can appoint a limited guardian or a plenary guardian. These guardians may be either:
- A guardian of person
- A guardian of estate
- A guardian of both person and estate
A limited guardian is granted the power to make only those decisions about personal care and/or personal finances that the court specifies. A plenary guardian generally has the power to make all decisions about personal care and/or finances for the disabled person.
A guardian of the person is appointed by the court when a disabled individual cannot make or communicate responsible decisions regarding his personal care. This guardian will make decisions about medical treatment, residential placement, social services and other needs.
The court appoints a “guardian of the estate” when a disabled person is unable to make or communicate responsible decisions regarding the management of his or her estate or finances. The guardian will, subject to court supervision, make decisions about the ward’s funds, income or other assets.
Guardianship is awarded or denied at the conclusion of a court hearing. The appointed guardian may be required to submit an annual report to the court. All estate expenditures are subject to court review, and the guardian may be held accountable for estate assets that are improperly managed.
In Illinois a guardian must meet the following conditions:
- At least 18 years of age
- Never convicted of a serious crime
- Deemed by the court as “of sound mind”
- A legal resident of the United States
Family members are not automatically named the legal guardian for a disabled relative. A family member must petition the court to be named guardian, or the disabled person may express a preference as to his or her guardian. If the disabled person expresses a preference, the judge will give consideration to the disabled person.
Public and private not-for-profit agencies also are eligible and encouraged to participate in the guardianship role, although agencies providing residential services to disabled persons residing in their facilities cannot serve as guardians.
Guardianship will ultimately be granted to the person or entity that will act in the best interest of the disabled person, regardless of the party’s relation to the disabled.
If parents or legal guardians should die or be unable to care for a disabled adult, the Office of State Guardian may step in. By law, the Office serves as guardian only when no other person is suitable and willing to serve.
Guardianship hearings are set within 30 days of a petition being filed with the court. The disabled person must be served with a summons and a copy of the petition. He or she may be represented by an attorney, have a jury trial, present evidence, and cross-examine witnesses. In some cases, a guardian ad litem is appointed, who advocates for the best interest of the person.
In between the filing of the petition and the court’s decision, a temporary guardian may be appointed. Temporary guardianship is limited to 60 days and is intended to ensure that an allegedly disabled person receives immediate protection.
Note: This information was prepared as a public service by the Illinois State Bar Association. Every effort has been made to provide accurate information at the time of publication. For the most current information, please consult your lawyer. If you need a lawyer and do not have one, visit our lawyer referral page.
Please rate this article!
How useful was this article to you? Your rating will help us continue providing you with the best resources and information possible.
Click on a star to rate.