Frequently Asked Questions About Illinois Guardianships
Adult guardianships can be a confusing area of the law. For many people, it is largely one of those concepts that are rarely talked about until the need for one arises. At SBK Law Group, our attorneys realize that laws regarding adult guardianship in Illinois can be confusing, and we are often asked many of the same questions about the process of having a guardian appointed. Here are just a few of them:
Q. What is a guardianship?
A. A guardianship is a legally recognized relationship that is established by the court to help a person in need. Adult guardianships, specifically, are created when the court finds that a person has a disability and that as a result of the disability that person is partially or totally unable to manage their personal decision-making or financial affairs. In creating a guardianship arrangement, the court appoints a person (or entity) to serve as the disabled person’s guardian and gives the guardian the authority to act on the disabled person’s behalf. The type and the extent of the guardian’s authority depend on the specific circumstances of each case.
Q. Are there different types of guardianships?
A. There are many different types of guardianships available under Illinois law. The various types A. There are many different types of guardianships available under Illinois law. The various types correspond to the nature and amount of help that the disabled person needs. A guardian of the estate, for example, handles financial and property matters for the person in question, while a guardian of the person can make health and medical decisions. Within these two categories, the guardian’s powers may be limited (i.e. – a limited guardianship) or they may be considered “plenary.” A plenary guardian has broad powers and duties for the ward. Finally, a guardianship may be appointed on a temporary or permanent basis, based on the necessity determined by the court.
Q. What qualifies a person to need a guardian?
A. The Illinois Probate Act of 1975 (755 ILCS 5) defines a qualifying disability as any condition that prevents or limits a person from managing his or her “person or estate.” Such conditions could include developmental disabilities, mental illness, certain physical incapacities, or even substance abuse. A person may also be found to have a qualifying disability if a condition prevents him or her from communicating his or her wishes, desires, or choices with others.
Q. Who determines if a person is disabled?
A. Under Illinois law, only the court has the power to determine that a person is considered disabled for guardianship purposes. In general, this means that a probate court judge in the county where the person in question lives must make the determination, though the alleged disabled person can demand a jury trial.
Q. What types of disabilities qualify?
A. There are many different types of qualifying disabilities, but the predominant factor is that the A. There are many different types of qualifying disabilities, but the predominant factor is that the disability must prevent the person from managing his or her affairs properly. A qualifying disability could be:
- A physical problem, such as paraplegia or another serious permanent injury
- A mental condition, such as severe schizophrenia
- Severe autism
- Cognitive impairment
- A developmental disorder
- Degenerative impairment related to age or illness (dementia, Alzheimer’s disease)
- An uncontrolled addiction, including addiction to alcohol, drugs, gambling, or other destructive behaviors
- Any other physician-documented condition the court finds to hinder the person’s ability to manage his or her life
Q. Who is qualified to be a Guardian?
A. A person does not need to have special qualifications in order to be granted guardianship of an adult who has been deemed disabled by the court. There are a few basic requirements, however. A person is considered qualified to serve as guardian if he or she:
- Is at least 18 years old
- Is a resident of the United States
- Is of sound mind
- Has not been adjudicated to have a disability
- Has not been convicted of a felony (some exceptions may be granted)
An appropriate agency or organization could also be appointed as guardian in certain cases. While special credentials are not needed to be a guardian, being a guardian is an important and complex role. Guardians are wise to retain qualified counsel to assist and guide them in their duties.
Q. Can I apply to be my loved one’s guardian?
A. Any person who knows about the disabled person’s need can file a petition for the appointment of the guardian. This means that you can certainly ask the court to appoint you as the guardian of your loved one. It is fully under the court’s discretion, however, to decide whether to grant your request. If multiple people are interested in being the person’s guardian, you might need to show that you are the best option. The court will make its determination based on the best interests of the disabled adult. It is also important to note that if you think a loved one needs help, but you do not want to be guardian yourself, you can still take action—an experienced attorney can help.
Q. Who can I call for help?
A. If you have a loved one that you believe may benefit from guardianship, contact the offices of SBK Law Group. Call 630-427-4407 for a free, confidential consultation with a member of our team today. We represent clients in Downers Grove, Naperville, Wheaton, Cook County, Will County, DuPage County, Kane County, and the surrounding areas.