Most of us take for granted the fact that we can make our own decisions regarding our health and finances, but that isn’t true for everyone.
For vulnerable individuals who lack the capacity to make these decisions themselves, guardianship offers a court-supervised process designed to provide for their safety and well-being.
That generally falls into two categories: guardianship of minors, and guardianship of incapacitated adults.
Guardianship of incapacitated adults is commonly used as part of long-term planning for adults with significant disabilities who are unable to manage their own lives. The process allows an individual to be appointed as legal guardian for a disabled adult to assume responsibility for their care and financial management.
For minors, guardianship can be established when a child receives finances that they cannot manage themselves, or when their parents are no longer able to care for them.
Whatever your family’s specific situation, arranging guardianship is a serious matter for protecting vulnerable individuals who cannot legally protect themselves.
However, guardianship isn’t a one-size-fits-all solution. Choosing the right structure depends on the individual’s needs, and the degree of authority needed.
Understanding Guardianship and Legal Representation in Illinois
Guardianship is restrictive by nature. It severely limits or removes the rights of the ward to make their own health and financial decisions. Because of this, the process requires strict court supervision.
In the state of Illinois, guardianship falls under the Illinois Probate Act of 1975. Entering guardianship requires oversight from the Probate Division of the Circuit Court where the minor or adult lives.
The court’s role is largely protective. Their aim is to appoint a guardian who can look after the ward’s financial and health care needs.
However, guardianship isn’t about taking control over someone’s life. It’s about protecting vulnerable individuals from harm and exploitation.
Courts are required to seek less restrictive options whenever they are available. Guardianship is only entered into when absolutely necessary for the safety and well-being of the ward.
In adult guardianship cases, Illinois law requires the court to appoint an independent attorney to represent the alleged disabled person in court, and preserve their rights.
Types of Guardianship
In Illinois, there are several types of guardianship:
Guardianship of the Person
In this form of guardianship, the guardian’s decision making power is limited to decisions that affect the day-to-day care of the individual. This includes their living arrangements and medical care. It can also include their education, particularly if they are underage, as well as their personal care.
Guardianship of the Estate
Guardianship of the estate, sometimes called guardianship of property, allows the guardian to make decisions about the individual’s finances and property. This is most often used to manage income and bank accounts, pay bills, and other financial transactions.
Plenary Guardianship
When deciding guardianship, the court may decide to give the guardian full-decision making power, known as plenary guardianship. This can be applied to either or both guardianship of the person and the estate.
Limited Guardianship
Limited guardianship gives the guardian control over specific aspects of the ward’s care or finances, allowing them to retain some decision making power. Courts prefer this form of guardianship whenever possible.
Guardianship of Minors in Illinois
In Illinois, persons under the age of 18 cannot legally manage financial assets. When a minor receives a substantial sum of money, such as from an inheritance or a financial settlement, the court will typically require a petition for guardianship of the estate to manage the funds.
Under Illinois law, parents are considered to be guardians of the person. They are responsible for the child’s physical health, safety, education, and day-to-day life. But that authority doesn’t automatically extend to their finances.
When a minor receives a significant financial windfall, their parent or interested party must formally petition the probate court for guardianship of the estate to manage the child’s finances.
In most cases, the court will appoint the child’s parents as their guardian of the estate. But that process is not automatic.
If the child’s parents pass away or become incapacitated while the child is still under age 18, the court may appoint a guardian of the person as well as of the estate.
Handling Funds and Court Protection
So what happens when a guardian of the estate is appointed for a minor?
The court will require the child’s funds to be deposited into a restricted bank account that holds their funds until they turn 18. The bank cannot legally release the funds to anyone, even the child’s parents, without receiving approval from the court.
The guardian is required to file annual financial reports to the court. This ensures that the minor is protected, even from well-meaning parents.
Once the child turns 18, the funds are released directly to them.
The Adult Guardianship Process in Illinois
Guardianship of disabled adults, sometimes referred to as guardianship of incapacitated adults, is used to arrange for the care of adults who cannot directly manage their own finances or care.
To be considered disabled in terms of guardianship, adults typically have a developmental disability, mental illness, cognitive decline, or another condition that prevents them from making decisions for themselves.
Assigning a legal guardian for disabled adults is done through a four-step process:
1. File a Petition
The process begins by filing a petition for adjudication of disability with the local probate court. This begins the legal process of determining whether or not an individual is capable of making decisions for themselves.
2. Gather a Physician’s Report
A physician’s report is required within 3 months of filing the petition. This report must describe the nature of the disability, as well as an evaluation of the ward’s mental capacity. The physician’s report will often recommend the scope of the guardianship, plenary or limited.
3. Court-Appointed Attorney
When there is a petition for adjudication of disability, Illinois requires a court-appointed attorney to be assigned to represent the allegedly disabled person, unless they already have private representation. The court-appointed attorney cannot be selected by the petitioner.
This is done for the protection of the allegedly disabled individual’s rights.
If the attorney were chosen by the petitioner, they might exhibit bias towards the petitioner. Using a court-appointed attorney prevents this bias and ensures the individual is represented impartially.
If you’re wondering who pays for this, the attorney’s fee is typically paid for by the alleged disabled person’s estate. If they have limited or no funds available, the county may cover the expense.
4. Guardianship Court Hearing
The final step is the guardianship court hearing. Both the attorney for the petitioner and the court-appointed attorney will present their evidence.
The probate court judge will decide if the person meets the qualifications to be legally considered disabled and whether guardianship is truly necessary, and whether it is plenary or limited.
Remember, the courts do not make guardianship decisions lightly. If there are less restrictive options available, the judge will likely defer to that decision, or move for limited guardianship.
What Happens After Guardianship is Decided?
Whether guardianship is decided of the person, the estate, or both, the court will require significant supervision.
Guardians aren’t given carte blanche to spend the ward’s funds. They must file an annual report that includes detailed financial reporting of how the money was spent.
Large expenditures may require approval from the court. Any major decisions, like selling property, require court permission. This keeps guardians accountable and makes sure the ward is protected.
Why a Guardianship Attorney is Essential
Obtaining guardianship is a complex process. It involves a great deal of time and paperwork. An experienced attorney will provide guidance and make the process easier for the petitioner.
A guardianship attorney will see that the official petition is drafted and filed appropriately. They will see that physician’s reports meet the statutory requirements. They’ll prepare you for the court hearing, and help you navigate possible objections.
Remember, a court-appointed attorney is required to represent the incapacitated adult. Retaining your own guardianship attorney to oversee the process makes sure your case is presented clearly, and that things move forward in compliance with Illinois law.
Looking for Guardianship Legal Representation? Staza Law Can Help
Whether the case involves a minor child or a disabled adult, guardianship is about protecting the individual first and foremost. Because the adult guardianship process is so restrictive, it is only used as a last resort. The court will almost always defer to the least restrictive option if one is available.
When guardianship becomes necessary, either to protect a minor’s financial assets, or to provide for care and management of an adult, the process is closely monitored.
Guardianship isn’t about control. It’s about looking out for the safety of the ward, and seeing that there is accountability for whomever assumes the responsibility of guardianship.
For Chicago area families who are in need of guardianship legal representation, Staza Law can help. Our team can help you navigate the complex petition process and help you get the protection your loved one needs.
Contact Staza Law today to start the conversation about guardianship for adults and minors, and let our team provide peace of mind.
**Disclaimer**
The content of this blog is for general informational purposes only, and does not constitute legal advice. Please consult with a qualified attorney for advice specific to your situation.