In a guardianship for disabled adults in Illinois, a court formally adjudicates an individual mentally incompetent and appoints a legal guardian to be responsible for the personal and/or financial decisions of the mentally disabled individual.
Two Kinds of Guardianships in Illinois
In Illinois, there are two basic types of guardianships: a guardianship of the person and a guardianship of the estate. An Illinois Guardianship judge will appoint a guardian of the person to care for and protect the disabled person's personal needs, such as medical decisions and day-to-day personal decisions. A judge will appoint a guardian of the estate to care for and protect the disabled person's financial needs, such as managing the personal finances. Typically, the same person will serve as the guardian of the person and the estate.
In order to avoid the guardianship process, an individual can include a Power of Attorney for Health Care and Property in his/her estate plan. The Power of Attorney for Health Care grants the named Agent similar powers to the guardian of the person, and the Power of Attorney for Property grants the named Agent similar powers to the guardian of the estate. Thus, durable Powers of Attorney for Health Care and Property are important documents in a complete estate plan. However, in the absence of Powers of Attorney, the guardianship process is the necessary default system for protecting mentally disabled adults in Illinois.
Case Study: Guardianship Needed due to Lack of Powers of Attorney
When Ron contacted our firm, his mother was already suffering from severe dementia, and was clearly unable to manage her personal or financial affairs. Also, while Ron’s mother did not have a large estate, she did own a house and several financial accounts. Since Ron’s mother didn’t have Powers of Attorney in place to designate whom she wanted to serve as her Agent, Ron hired our firm to help him with the guardianship process. We then proceeded to open a guardianship case in court, obtain Ron’s appointment as the Guardian of the Estate and Person for his mother, and guide Ron through the duties and responsibilities of being a Guardian. Through our experience and skill in handling many guardianship cases, we were able to give Ron peace of mind and quality direction at a confusing and complicated time in his family’s lives.
How does a court select a guardian in Illinois?
One of the most important steps in setting up an Illinois Guardianship is selecting the proper individual to serve as guardian for the disabled person. Those individuals with direct ties to the disabled person are preferred as possible guardians by courts. These include:
The individual chosen by the court to act as the guardian must be both willing and able to perform the necessary duties as guardian of the disabled person. The court will also consider the potential guardian's character, background, and physical health, among other factors.
What does a guardian do?
Once a guardian is appointed, there are many decisions that need to be made. The specific types of decisions that a guardian might make on behalf of the mentally disabled person include:
An Illinois Guardianship requires a guardian to act in the place of the disabled individual and to protect the disabled individual's interests. A court only appoints a guardian when an alleged disabled person is adjudged to be partially or completely incapacitated and cannot make decisions for him/herself because of a mental disability.
Guardianship of a Disabled Adult Estate
In Illinois, there are two kinds of guardianship estates: a guardianship of a disabled adult estate and a guardianship of a Minor's estate. So, how does a guardianship of the estate for a disabled adult actually work in Illinois? Let’s take a closer look.
Appointing a Guardian of the Estate
Once a disabled person has been found to be mentally incompetent by a local guardianship court, and the disabled person holds significant assets in his/her estate, a judge will appoint a Guardian of the Estate to protect the disabled person's assets. (A guardianship of an estate is known as a "conservatorship" in other states.) A Guardian of the Estate for an adult disabled person is charged with the duty to collect, inventory, invest, and otherwise manage the disabled individual's assets.
In order to be appointed as the Guardian of an Estate, a person will need to obtain a surety bond from a local insurance agency. The surety bond ensures the proper performance of the Guardian's actions in handling the estate assets. If the Guardian fails in his/her duties, the estate can seek reimbursement from the surety bond company if guardianship funds have been lost.
Once a person has been appointed to serve as the Guardian of an Estate, he/she must file an Inventory with the Court within 60 days (755 ILCS 5/14-1). The Illinois Probate Act states:
14-1. Inventory. (a) Within 60 days after the issuance of his letters, the representative of the estate of a decedent or ward shall file in the court a verified inventory of the real and
personal estate which has come to his knowledge and of any cause of action on which he has a right to sue. If any real or personal estate comes to the knowledge of the representative after he has
filed an inventory he shall file a supplemental inventory thereof within 60 days after it comes to his knowledge.
(b) The inventory must describe the real estate and the improvements and encumbrances thereon, state the amount of money on hand and list all personal estate.
Thus, the Inventory must list the real estate, bank accounts, insurance, retirement accounts, vehicles, stock accounts, tangible personal property, etc., of the disabled person. The Inventory must also show the fair market value (or an estimate of the fair market value) of each asset as of the date of the Inventory.
The Guardian of the Estate will also be required to file regular accountings with the Court to detail his/her actions as the Guardian. The accountings (which are typically required to be filed annually) are cash-flow accountings showing the ongoing receipts and disbursements in the estate. To find out more information about these accountings, check out our page on Illinois guardianship accountings.
Management of Estate Assets
In addition, the Guardian of the Estate will be required to "frugally" manage the estate assets, and make sure that ongoing expenditures are properly made for the benefit and care of the disabled person (755 ILCS 5/11a-18). "Frugal" management of estate assets requires the Guardian of the Estate to avoid aggressive investment strategies, and instead seek conservative investments that will preserve the disabled person's property for as long as possible into the future.
Contact our Firm
Our firm has helped many Guardians with routine and complicated Guardianship estates across the Chicagoland area, including in Kane, DuPage, Will, Kendall, and Cook Counties. If you have questions regarding a Guardianship matter, complete the form below to set up a free initial consultation today!
The Law Office of Kevin Williams, 2295 Bannister Lane, Aurora, IL 60504, (630) 898-4789