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April 05, 2018

By Kerry R. Peck

What is a Guardian?

A guardian is someone appointed by the court to serve as a representative of a person with a legal disability, including Alzheimer’s disease or dementia.  In Illinois, “disability” is defined as a person’s inability to manage one’s person or estate due to “mental deterioration or physical incapacity.” In most states, an individual may be adjudged to have a disability by a court after a competency hearing. If the individual is determined to be disabled in Illinois, the court will appoint a guardian to promote the well-being of the disabled individual, to protect the individual, and to “encourage development of his maximum self-reliance and independence.”  The disabled individual is referred to as “the ward.”

Types of Guardianship

In Illinois, if the court adjudges a person to have a disability, the court may appoint (1) a guardian of person, if it has been demonstrated by clear and convincing evidence that because of the disability the person lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the care of person; (2) a guardian of the estate, if it has been demonstrated by clear and convincing evidence that because of the disability the person is unable to manage his estate or financial affairs; or (3) a guardian of person and the estate.

Guardianships are only to be utilized as is necessary to promote the well-being of the person with disabilities; to protect the person from neglect, exploitation, or abuse; and to encourage development of maximum self-reliance and independence. A guardianship will be ordered only to the extent necessitated by the individual’s actual mental, physical, and adaptive limitations.

Guardian of Person

The guardian of the person may:

  • make medical decisions
  • oversee the residential placement of their ward (with court approval)
  • ensure that the ward receives proper professional services
  • release medical records and information

The guardian will assist the ward in the development of maximum self-reliance and independence. The guardian of the person may petition the court for an order directing the guardian of the estate to pay an amount periodically for the provision of the services specified by the court order. If the ward’s estate is insufficient to provide for education and the guardian of the ward’s person fails to provide education, the court may award the custody of the ward to some other person for the purpose of providing education. If a person makes a settlement upon or provision for the support or education of a ward, the court may make an order for the visitation of the ward by the person making the settlement or provision as the court deems proper. A guardian of the person may not admit a ward to a mental health facility except at the ward’s request as provided in article IV of the Mental Health and Developmental Disabilities Code and unless the ward has the capacity to consent to such admission as provided in article IV of the Mental Health and Developmental Disabilities Code.

Guardian of the Estate

The guardian of the estate may do the following for the ward:

  • make financial decisions
  • enter into contracts
  • estate planning
  • file lawsuits
  • sell real estate
  • apply for government benefits 

The guardian has a fiduciary duty to investigate and pursue eligibility for government benefits to conserve estate assets. In cases involving substantial assets, the court may require (or the family or the parties may request) a corporate guardian of the estate. All of the major banks and many of the mid-tier banks have trust departments that act as guardian of the estate. However, it should be noted that a bank will not act as guardian of the person. To the extent specified in the order establishing the guardianship, the guardian of the estate will be responsible for the care, management, and investment of the estate. In some states, a guardian of the estate is referred to as a conservatorship. The guardian of the estate must manage the estate frugally and apply the income and principal of the estate so far as necessary for the comfort and suitable support and education of the ward, his minor and adult dependent children, and persons related by blood or marriage who are dependent upon or entitled to support from the ward, or for any other purpose that the court deems to be for the best interests of the ward. The guardian may make disbursement of the ward’s funds and estate directly to the ward or other distributee or in such other manner and in such amounts as the court directs.

It is important to note that disability must be assessed according to statutory definitions and cannot be inferred merely from old age.  Some people are the subject of guardianship proceedings because their conduct is somewhat contrary to our natural norms of society.

Guardianship can sometimes be necessary in order to protect our loved ones. So while it may seem like a big undertaking, your attorney will help you to navigate through this process, so you can focus on protecting and caring for your loved one.

Kerry R. Peck is the managing partner of the law firm Peck Ritchey, LLC, with offices in Chicago and Northbrook, where he concentrates his practice in Trust and Estate Litigation, Estate Planning, Administration, Guardianship and Fiduciary Litigation, Special Needs and Alzheimer’s Disease Planning. Mr. Peck is past President of the 22,000-lawyer Chicago Bar Association. He was named chair of the State’s Attorney Anita Alvarez’s Elder Abuse Task Force and was retained by the City of Chicago Department of Aging to rewrite the State of Illinois Elder Abuse and Neglect Act. He co-wrote the book Alzheimer’s and the Law, published by the American Bar Association, and frequently teaches attorneys and healthcare professionals across the country.