Adult Guardianship in Illinois and Will County
Adult guardianship is a court case in which a judge decides an adult cannot manage personal or financial decisions and appoints a guardian. Illinois law governs it in Article XIa of the Probate Act. A signed power of attorney for property and one for health care can often keep a family from needing it.
What you need
These documents are the ones that can make a guardianship case unnecessary.
- A power of attorney for property, so an agent can pay bills, manage accounts, and handle real estate.
- A power of attorney for health care, so an agent can speak with doctors and consent to treatment.
- A living will, for a terminal condition.
- A revocable trust, if you want a successor trustee to manage the assets inside it.
- A list of accounts, insurers, and doctors, kept where your agent can find it.
All of these must be signed by you while you can understand what you are signing. That is why the work belongs before a health scare.
What the Probate Act means by a person with a disability
Section 11a-2 defines a person with a disability as someone 18 or older who, because of mental deterioration or physical incapacity, is not fully able to manage his or her person or estate. The definition also reaches a person with mental illness or a developmental disability who is not fully able to manage, a person who so wastes his or her estate through gambling, idleness, debauchery, or excessive use of intoxicants or drugs as to expose the person or family to want or suffering, and a person diagnosed with fetal alcohol syndrome or effects.
Under section 11a-3, a court may adjudge a person disabled only if shown by clear and convincing evidence. The court may then appoint a guardian of the person, if the person lacks the understanding to make or communicate responsible decisions about care, a guardian of the estate, if the person cannot manage financial affairs, or both. Section 11a-3(b) adds that guardianship is to be used only as necessary and only to the extent of the person's actual limitations.
How the case moves
Someone files a petition. Section 11a-8 requires it to name the respondent's agent or agents under any power of attorney. A report from evaluators, including a licensed physician, normally comes with it, and the court sets a hearing within 30 days under section 11a-10. A guardian ad litem generally visits the person and reports to the judge on what the person wants.
Under section 11a-11, the person has the right to a lawyer, to demand a jury of 6, to present evidence, and to question witnesses, and is generally expected to attend. Section 11a-12 lets the court appoint a limited guardian when some capacity remains, or a plenary guardian when the person is totally without capacity and a limited guardianship would not protect the person. The judge gives due consideration to the person's preference of guardian, and the person's welfare is the paramount concern.
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Tell Jeff about your family, your home and what you want to happen. He'll explain the next step.Office hours: Monday to Friday 8:30 AM to 6 PM, Saturday 10 AM to noon. After hours, leave your name, number and the best time to call back.
Jeff McCarthy, Inspired Law Group, 136 E 9th St, Lockport, IL 60441
How powers of attorney keep a family out of court
A guardian is appointed because nobody else has legal authority. A power of attorney supplies that authority in advance. Under section 2-5 of the Power of Attorney Act, an agency continues until your death unless it sets an earlier end date, even if you become disabled or a guardian is appointed. Your agent keeps working through illness without a judge. The Probate Act says the same for health decisions: nothing in the guardianship article prevents an agent under a health care power of attorney from exercising authority without a further court order, unless a court has acted under section 2-10 of the Power of Attorney Act.
Two details help your family later. The Illinois health care form has a box where you nominate your agent to be the guardian of your person if one is ever appointed. And in a guardianship petition, the court is told about your agents, which makes your choices visible to the judge from day one.
When a court may still step in
A power of attorney is a private arrangement that a court can still review. Section 2-10 lets a court, on the petition of an interested person and after finding the principal lacks capacity to control or revoke the agency, construe the document and review the agent's conduct. If the agent is not acting for the principal's benefit, or action or inaction threatens substantial harm, including blocking reasonable visits by an interested person, the court can order a guardian to use the principal's powers, including revoking the agency. A guardianship petition aimed at a power of attorney must follow that Act.
This is the check on a dishonest agent. It is also the reason to choose carefully and to keep records. See the duties listed on the property power of attorney page.
If there are no documents yet
If a family member can no longer manage affairs and no power of attorney exists, and the person cannot sign one, the family may have to go to court. A lawyer can review the facts, tell you whether a limited guardianship or other step fits, and prepare the petition. If the person can still understand and sign, the documents may still be possible, and that route avoids a court case.
Sources
Reviewed by Jeff McCarthy, Attorney, Inspired Law Group, 136 E 9th St, Lockport, IL 60441.
Questions people ask about adult guardianship
Short answers first. Jeff McCarthy reviews every answer on this page.
Sign a power of attorney for property and a power of attorney for health care while you have capacity. Your agents can act without a court case, and the property power continues through incapacity under section 2-5.
You choose an agent yourself in a document. A judge appoints a guardian after a hearing and decides the powers.
Under section 11a-3, a reputable person, the alleged person with a disability, or the court on its own motion may start the case. It requires clear and convincing evidence of a disability.
Under section 11a-11, the person may have a lawyer, demand a jury of 6, present evidence, and cross-examine witnesses.
Yes. If the person lacks some but not all capacity, the court shall appoint a limited guardian, with a written order setting the duties and powers.
You can nominate your health care agent on the statutory form. The court gives due consideration to your preference, but the judge decides.
A court can review an agent's conduct under section 2-10 and order relief, including having a guardian exercise the principal's powers.
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Every case comes down to its facts and its deadlines. Talk with Jeff McCarthy so you can:
- Get clear on your legal options.
- Avoid costly mistakes.
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