Last updated: December 2006

(Chapter 3 Section 1 of Senior Citizens Handbook)

• Court Appointed Guardians
• Alternatives to Guardianship

A guardianship is a court order granting someone the legal authority to handle the affairs of a person who is incapable of managing his or her own affairs. This section will explain when a guardianship is appropriate, how a guardian is appointed, the guardian’s duties, and alternatives to guardianship.

Court Appointed Guardians

Purpose of a Guardianship

When a person can no longer safely or responsibly handle their personal and/or financial affairs, a court may appoint a guardian. The guardian will have the legal authority to make decisions and take actions necessary to care for and protect the disabled person.

The term “disabled person” means a person 18 years or older who, because of mental deterioration, mental illness, physical incapacity, developmental disability or gambling, idleness, debauchery or excessive use of intoxicants or drugs, is unable to fully handle his or her own affairs in a safe manner and is, therefore, in need of a guardian.

Once a guardianship order is entered by the court, the disabled person is referred to as the "ward".

A “guardian” is the person appointed by a judge to make decisions on behalf of the disabled person.

The Authority of the Guardian

The court may appoint a guardian of the person or a guardian of the estate. Often, the same person is appointed both guardian of the estate and guardian of the person, though they can be different people.

Guardian of the Person: This refers to the guardian who makes decisions concerning the personal and physical care of the ward, including health care decisions and living arrangements.

Guardian of the Estate: This refers to the guardian who handles the money, property, bills, and other financial affairs of the ward.

If the judge decides that the disabled person still has the ability to handle his or her affairs in some ways, the guardian may be given authority to handle only certain matters that the ward cannot safely handle. This is referred to as a "limited guardianship."

If the judge determines that the ward is completely unable to handle his or her affairs, then the judge may give the guardian the authority to handle all such affairs. This is referred to as a "plenary guardianship."

Duties of the Guardian

The guardian is required to protect the ward’s best interests. This includes the duty to provide for the ward’s support, housing, and health. The guardian is required to help the ward achieve the maximum degree of self-reliance and independence.

When making decisions on the ward’s behalf, a guardian of the person should try to do what he believes the ward would want done under the circumstances. The guardian should take into consideration the ward’s personal, religious, and moral beliefs.

A guardian of the estate must handle the ward’s income and assets. If the income and assets are more than enough to pay for the ward’s day-to-day needs, the guardian of the estate is required to responsibly invest the excess funds and assets. The guardian may be required to file periodic reports with the court explaining how the ward’s finances and other affairs are being handled.

Who Serves as the Guardian?

To qualify as a guardian, you must be 18 years or older, a U.S. citizen, be of sound mind and have no felony convictions. If you have been convicted of a felony, the court may appoint you as guardian if the court determines that it is in the ward's best interest and after a detailed inquiry into your felony conviction

Often, a family member or friend will be the guardian. If no one is willing to be the guardian, the judge may appoint a County Public Guardian, or the Office of State Guardian.

Procedure for Appointment of a Guardian

The procedure for appointing a guardian involves three steps:

1. A Petition for Guardianship is filed in Court. The petition may be filed by the proposed guardian or by some other person with a concern for the disabled person’s affairs. A doctor’s statement completed within 90 days of the filing of the petition about why a guardianship is necessary is usually also filed at this time. If the doctor's statement is not filed with the petition, it must be completed and filed at least ten (10) days before the hearing.
2. The person filing the petition sends a notice of the time and place of the hearing to the disabled person and to his/her relatives.
3. A court hearing is held. The judge decides whether the “disabled person” is unable to safely handle his or her own affairs. If the judge makes a finding of disability, he or she will appoint a guardian of the person, the estate, or both. The judge will decide whether the guardian will have plenary power, or will be authorized to handle only a limited range of matters.

Rights of the Disabled Person

A guardianship is a drastic action which deprives the person of almost all basic rights. Therefore, persons alleged to be disabled are entitled to appear in court to fight the case. They are entitled to a court appointed lawyer if they are poor, and they have the right to a jury trial and to present witnesses. They may request that the judge appoint an independent doctor to examine them and report whether he or she believes that they are in need of a guardian.

Even if the case is not being contested, the judge often appoints a Guardian ad Litem (GAL). A GAL is someone who the judge appoints to investigate the facts of the case. The GAL’s job is to determine whether a guardianship is needed, and, if so, the scope of the guardianship and who should serve as the guardian. The judge considers the GAL’s opinions in making the final decision.

Ending the Guardianship

The ward or someone acting on their behalf may ask the judge to end the guardianship at any time. This is best done by filing a petition in court. The ward could simply send a letter to the judge asking that the guardianship be changed or ended and explaining the reasons. Upon receiving the letter, the judge may schedule a court hearing or appoint a GAL to investigate the request.

Changing the Guardian

In some circumstances, the ward or someone acting on his/her behalf may ask the judge to appoint a new guardian. 
Examples: You may ask to replace the guardian if he is mishandling your affairs or is unable or unwilling to properly handle his duties.

The judge may appoint a GAL to investigate whether a new guardian should be named.

Alternatives To Guardianship

Appointing a guardian can be costly and emotionally painful for all involved and should not be undertaken lightly. However, if someone is totally incapable of handling his or her affairs and has not signed a valid Power of Attorney, there may be no alternative to seeking guardianship.

Health Care Alternatives

There are a variety of other steps you can take to greatly decrease the chances that you will ever need to have a guardian appointed to handle your affairs. In terms of making health care decisions, a properly drafted Power of Attorney for Health Care, or a Living Will can in many cases make a guardianship unnecessary. If you become incapacitated, the agent you appoint can handle your affairs. If there is no Power of Attorney for Health Care or Living Will executed, then a person can be appointed through the Health Care Surrogate Act to make your health care decisions. Each of these alternatives and others are discussed in detail in the Section of this Chapter titled “Health Care Decisions.”

Financial Alternatives

Likewise, when it comes to making financial decisions, you can make sure that someone has the authority to handle your finances without a guardianship order. Some alternatives for you to consider are a Power of Attorney for Property, a living trust, a joint bank account or a representative payee arrangement. Each of these alternatives is described in detail in the section of this Chapter titled “Financial Decisions.”

Where To Go For More Information

Statutes

The statute concerning guardianships for adults with disabilities can be found at 755 ILCS 5/11a.

Agencies and Organizations

The Office of State Guardian (OSG)

This office can provide legal advice and referrals to people with disabilities concerning guardianship issues. In addition, the office can serve as guardian if no one else is available. They can be reached at:

866-274-8023 (toll free)
866-333-3363 (TTY)
Chicago Office: 312-793-5900
Springfield Office: 217-785-1540
312-793-5937 (TTY)

The OSG is a part of the Guardianship and Advocacy Commission, a state agency.

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