Guardianships for the Disabled

Ideally, our clients would have the opportunity to plan in advance for any eventual disability by executing advance directives such as powers of attorney for property and health care. Such documents allow you to designate an agent to act on your behalf should you become incapacitated and the extent of the powers you wish your agent to have. You can also clearly set forth your feelings on important medical issues, such as end of life decisions, palliative care and organ donation. Unfortunately, such advance directives are not always available, whether due to lack of planning, inability of the agents to serve or a developmental disability that prevents a person from ever having the capacity to make a directive. In such cases, a guardianship may be necessary.

How is "Disability" Defined?

The Illinois Probate Act defines a "disabled person" as:

"[A] person 18 years or older who (a) because of mental deterioration or physical incapacity is not fully able to manage his person or estate, or (b) is a person with mental illness or a person with a developmental disability and who because of his mental illness or developmental disability is not fully able to manage his person or estate, or (c) because of gambling, idleness, debauchery or excessive use of intoxicants or drugs, so spends or wastes his estate as to expose himself or his family to want or suffering."

The basic question the court will examine in determining disability is whether the person is able to make or communicate responsible decisions. The court will not find a person disabled merely because they are receiving mental health services, have been diagnosed with a disease such as Down Syndrome or need help in making decisions. In each case, the court will examine the person's ability to make decisions and manage their person or estate, and the guardianship will be ordered only to the extent necessitated by the individual's actual mental, physical and adaptive limitations.

What are the Powers and Duties of the Guardian?

There are two types of guardians: guardians of the person and guardians of the estate. One person may serve as guardian of both the person and the estate of a ward.

A guardian of the person has custody of the ward and must provide for the ward's support, care, comfort, health, education and maintenance, and professional services as are appropriate. An important goal and obligation of the guardian of the person is to assist the ward in the development of maximum self-reliance and independence. In making decisions on the ward's behalf, the guardian of the person should attempt to do what the ward would do if competent, by considering such things as the ward's personal, religious and moral beliefs or ethical values. If unable to determine what the ward's wishes would be, the guardian of the person should proceed on the basis of the ward's best interests.

A guardian of the estate generally has the duty of the care, management and investment of the ward's estate, and must apply the income and principal of the estate so far as necessary for the comfort and suitable support and education of the ward. There are other actions that might not be in the ward's best interest, but which the ward would have taken for estate planning or personal reasons, that the guardian of the estate may take with court approval.

The court may give the guardian of the person and estate broad (plenary) powers in the order of appointment, or it may limit the guardian's powers. A guardian does not have the power to consent to the administration of mental health treatments on behalf of a ward if the ward objects.

Who May Serve as Guardian?

A competent person of at least 18 years of age who resides in the United States and has not been convicted of a felony may serve, as long as the court finds that person capable. Family members and friends are generally the first choice, but this is not always an option due to a lack of ability or willingness to serve. If the ward has a large estate, a bank with a trust department may be willing to serve as guardian of the estate. For a ward with a smaller estate (but larger than $25,000.00), the local Public Guardian of the county may be appointed as guardian. The Public Guardian is usually an attorney, and the ward's estate is charged for the Public Guardian's services. For wards with estates of less than $25,000.00, the Office of the State Guardian may be appointed.