The issue of adult guardianship turns on whether a person with a disability (“PWD”) is able to make and communicate responsible decisions about aspects of everyday life. The Illinois Probate Code defines “persons with a disability” as an individual 18 years or older who is not able to fully manage their person or estate due to mental deterioration or illness, physical incapacity, or developmental disability. 755 ILCS 5/11a-2.

Who May Qualify as a Guardian

The Illinois Probate Code requires that a proposed guardian be “capable of providing an active and suitable program of guardianship for the person with a disability.” The proposed guardian must also:

  1. Be over 18 years of age;
  2. Be a resident of the United States;
  3. Be of sound mind;
  4. Not be disabled; and
  5. Not be a convicted felon.

The convicted felon requirement can be waived if appointment of this proposed guardian would be in the best interest of the PWD. The Court will consider the nature and date of the offense in addition to evidence of the proposed guardian’s rehabilitation. An individual previously convicted of a felony involving threat or harm to a minor, elder, or PWD is prohibited from being appointed as a guardian.

Illinois Probate Code § 755 ILCS 5/11a-5.

Types of Guardianship

There are two types of guardians for a PWD: “guardian of the person” and “guardian of the estate”.

The guardian of the person is appointed by the court for a PWD if the person cannot properly make decisions for their personal well-being. This guardian will direct medical treatment, residential placement, social services, and other needs for the PWD. 755 ILCS 5/11a-17.

On the other hand, a guardian of the estate is appointed by the court for a PWD if the person is unable to manage their estate or finances. Under supervision of the court, this guardian will make decisions concerning the PWD’s funds while safeguarding any income and other assets. 755 ILCS 5/11a-18.

Guardianship Based on Decision-Making Capability

The Illinois Probate Code grants certain amounts of power to the guardian based on the PWD’s capacity to make and communicate choices concerning their well-being and estate.

Limited guardians are granted the power to make decisions regarding certain personal and financial decisions that are specifically identified by the court.  755 ILCS 5/11a-4.

Plenary guardians have the power to make all personal and financial decisions for the PWD. 755 ILCS 5/11a-17.

A temporary guardian has very restricted decision-making abilities as they are appointed by the court only for the period of time between the filing of a guardianship petition and the conclusion of the guardianship hearing. The purpose of a temporary guardian is to ensure the PWD is protected immediately, but it will expire after 60 days. 755 ILCS 5/11a-3.2.

Initiating Guardianship of a Person with a Disability

Before guardianship can be established, an interested person (individual seeking to act as guardian) file a petition and report with the Probate Court. The petition must include:

  1. The relationship between the interested person and the PWD;
  2. The name, date of birth, and place of residence of the PWD;
  3. If any, the name and post office addresses of the PWD’s guardian and any agents of the PWD under the Illinois Power of Attorney Act;
  4. The names and addresses of the PWD’s spouse and adult children, parents and adult siblings, or, if none, nearest adult related to the PWD;
  5. The name and address of the person with whom or the facility in which the PWD is residing;
  6. The approximate value of personal property and real estate of the PWD;
  7. The estimated annual gross income and other receipts of the PWD; and
  8. the name, address, age, occupation, and relationship to the PWD of the proposed guardian.

755 ILCS 5/11a-8

The accompanying report must include:

  1. Description of the PWD’s disability and how it impacts the PWD’s ability to function independently;
  2. Evaluations of the PWD’s mental and physical condition, or, for intellectual disabilities, a psychological evaluation performed by a clinical psychologist within one year of the petition’s filing;
  3. The scope of guardianship needed and the reasons therefore;
  4. Recommendations as to the most suitable living arrangement and treatment options and the reasons therefore; and
  5. The names, addresses, phone numbers, and signatures of all persons who performed the PWD’s evaluations.

755 ILCS 5/11a-9

After the petition and report are filed, the Court will hold a guardianship hearing where evidence of the PWD’s health, mental capabilities, estate, and living arrangements are presented. After reviewing all the pieces of evidence, the Court will enter an order for limited, plenary, or no guardianship. 755 ILCS 5/11a-11. If you are looking for a guardianship lawyer in  Lake County or McHenry County, call our guardianship lawyers at Johnston Tomei Lenczycki & Goldberg, LLC today for a no charge initial consultation.



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