Guardianship for disabled adults
If parents should die or be unable to care for a physically or mentally disabled child, 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. It also offers guidance to persons requesting this assistance.
Guardianship is needed when a person is unable to make and communicate responsible decisions regarding his personal care or finances due to a mental, physical or developmental disability. The fact that a person is elderly, mentally ill, developmentally disabled, or physically disabled does not necessarily mean he or she needs a guardian. The court actually makes the decision based on a thorough clinical evaluation and report.
Two basic types of guardianship are “person guardianship” and “estate guardianship.” 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 estate or finances. The guardian will, subject to court supervision, make decisions about the ward’s funds and the safeguarding of the ward’s income or other assets.
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 who is granted the power to make only those decisions about personal care and/or personal finances that the court specifies. The court can also appoint a plenary guardian who generally has the power to make all decisions about personal care and/or finances for the disabled person.
In between the filing of the petition and the court’s decision, a temporary guardian may be appointed by the court for the period between the filing of a petition for guardianship and the conclusion of the court hearing where the need for guardianship is decided. Temporary guardianship lasts no longer than 60 days and is meant to ensure that an alleged disabled person receives immediate protection.
For the most part, any person 18 years of age and older who has not been convicted of a serious crime and who is of sound mind can serve as guardian, if the court finds the person suitable. A guardian must be a legal resident of the United States; however, public and private not-for-profit agencies also are eligible and encouraged to participate in the guardianship role. Only agencies providing residential services to disabled persons residing in their facilities cannot serve as guardians.
Family members are not automatically named the legal guardian for their disabled relative; however, a family member may petition the court to be named guardian or the disabled person may express a preference as to his guardian. If the disabled person expresses a preference, the judge will give consideration to the disabled person. However, the judge appoints whoever will make the best guardian and act in the best interest of the disabled person, regardless of the party’s relation to the disabled.
Guardianship hearings are set within 30 days of a petition being filed with the court. The alleged disabled person must be served with a summons and a copy of the petition. They may be represented by an attorney, have a jury trial and present evidence and cross-examine witnesses. In some cases, a guardian ad litem is appointed, who advocates for the best interest of the person.
Guardianship is awarded or denied at the conclusion of a court hearing. The appointed guardian is responsible for overseeing a program; he or she also 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.
Note: This information was prepared as a public service by the Illinois State Bar Association and is a joint project with the Illinois Press Association. Its purpose is to inform citizens of their legal rights and obligations.