Navigating the guardianship process can be a daunting task. Even for attorneys experienced in guardianship litigation, navigating a guardianship proceeding poses substantial challenges. Each situation is unique, and family dynamics often complicate the process even further. At HUCK & BRISSKE, LLC, we understand how very difficult it is to deal with the disability of a loved one, and we try to be sensitive to the emotional needs of the disabled person and of his or her family.

Guardianship law focuses on having a court appoint a legal decision-maker for a disabled person who cannot make decisions on his or her own behalf. Guardianship proceedings can often be avoided if the disabled person (called the "principal") has signed appropriate Powers of Attorney, which clearly state the disabled person's wishes and name the individuals to make decisions in the event of incapacity (called "agents"). Such Powers of Attorney must, of course, have been executed while the disabled person had the legal capacity to sign such documents. They include a Power of Attorney for Property, which appoints an agent to handle the financial affairs of the principal, and a Power of Attorney for Health Care, which places the power to make and communicate health care decisions in the appointed agent, including the power to make end-of-life decisions.

If you are considering seeking guardianship of a loved one, you should be working closely with a guardianship attorney who can advise and guide you through the complex process of becoming a guardian. The attorneys at HUCK & BRISSKE, LLC, have the experience to guide you through the judicial guardianship maze. Procedures for petitioning for guardianship in Illinois are statutory and can be found in the Illinois Probate Act.

To begin the guardianship process, the first document the attorney will ask you to obtain is a physician’s report. This report, which is a court form, allows the disabled person’s primary physician to detail the extent of the disability and to confirm that the disable person is in need of an alternate decision-maker. The guardianship attorney will often ask you to have the doctor complete the form prior to your initial consultation.

The person filing the guardianship proceeding is usually seeking to be appointed guardian. The court will generally consider a number of factors in appointing a guardian, including the personal character of the person seeking to be appointed, the relationship of that person to the disabled person (the "ward"), and the availability of the person to perform the duties of guardian (i.e., does the person have the time and the energy to devote to the duties of a guardian). When determining who should serve as guardian, the best interests of the ward are paramount. If there are no eligible candidates within the disabled person’s family or close circle of friends, acquaintances and professional associates, professional guardians are available to step into this role. The only requirement is that the court give due consideration to any preference of the respondent.

An "allegedly disabled adult" is a person 18 years or older who 1) because of mental deterioration or physical incapacity is not fully able to manage his or her person or estate, or 2) is a person with mental illness or developmental disability and who because of mental illness or developmental disability is not fully able to manage his or her person or estate, or 3) because of gambling, idleness, debauchery or excessive use of intoxicants or drugs, so spends or wastes his or her estate as to expose the person with disability or dependents to want or suffering.
There are generally two types of guardianships in Illinois: a guardianship of the person, and a guardianship of the estate. A plenary guardianship combines the two.

In determining the need for a guardianship of the person, two prominent issues are the ability of the person to make medical decisions and decisions regarding residential living arrangements. If a person is unable to give informed medical consent or make appropriate decisions about living independently in a residence, a guardianship of the person should be considered.

Guardianship of the estate is necessary if a person, due to a disability, cannot manage his or her financial affairs. In that case, a guardian is appointed to handle the payment of the ward's bills, investment of his assets, deal with governmental agencies, and otherwise manage his or her assets and liabilities.

The guardianship proceeding is commenced by the filing of a Petition for Guardianship. The Petition is a statement that alleges the need for the appointment of a guardian for an alleged person with a disability. The reason for guardianship, as stated in the petition, should conform to the actual diagnosis given in the physician's report, and should also conform to the basic statutory criteria, which include mental deterioration, physical incapacity, developmental disability or mental illness and an inability to manage personal or financial affairs due to such deterioration, incapacity, disability, or illness. A person's status as elderly, frail, developmentally disabled or mentally ill, without proof of an inability to manage affairs, does not meet the statutory test.

Since medical reports are the foundation of guardianship petitions, careful scrutiny of the report is essential. In uncontested matters, the person who prepared the report is routinely excused from testifying. Accordingly, a report is often the major evidence considered by the court.
A guardianship summons is the legal notice physically served upon the respondent (the allegedly disabled person) which advises him or her of the time, date, and place of the guardianship hearing, the right to appointed counsel, the right to a jury trial, the right to request the appointment of an expert witness and other legal rights. The summons and a copy of the guardianship petition must be personally served on the respondent not less than 14 days before the guardianship hearing. An adjudication of disability cannot occur without proof of personal service on the respondent. A summons is usually served by the office of the sheriff of the county in which the respondent lives, but may be served by any individual over age 18 who is not a party to the guardianship proceeding.

The court will protect the respondent's rights to due process throughout the guardianship proceeding, including the right to counsel, the right to a trial by jury, the right to call witnesses, the right to cross-examine witnesses, the right to independent experts, and the right to appear and call witnesses.

A court may appoint an attorney to represent the respondent, if the court finds that the interests of the respondent will be best served by the appointment. Requests for counsel by a respondent may be made by any oral or written means, either before or at the guardianship hearing.
A respondent may request that the court appoint independent medical, psychiatric or other evaluations to attempt to refute allegations made by the experts retained by the petitioner.

Respondents are absolutely entitled to appear at guardianship hearings, cross examine witnesses, and present evidence. Guardianship hearings may be closed to the public at the request of the respondent, guardian ad litem, or appointed counsel.

In an uncontested guardianship case, the court will focus on the physician's report, and may even read the report into the court record. In many courts, the testimony of a witness familiar with the respondent, usually a person from the respondent's residence or care facility will testify concerning the need for guardianship.

If a guardian ad litem is appointed, a brief oral report discussing issues of importance may be made. The court will then rule, after considering the following factors:

• The nature and extent of the respondent's general intellectual and physical functioning,
• The extent of the impairment of the respondent's adaptive behavior if the person is developmentally disabled, or the nature and severity of the person's mental illness in the case of a person with mental illness,
• The understanding and capacity of the respondent to make and communicate responsible personal decisions,
• The capacity of the respondent to manage an estate and financial affairs,
• The appropriateness of proposed and alternate living arrangements,
• The impact of the disability upon the respondent’s functioning in the basic activities of daily living and the important decisions faced by the respondent or normally faced by adult members of the respondent’s community, and
• Any other appropriate area of inquiry.

Letters of Office, which are certified proof of the guardian's appointment, are usually issued by the Probate clerk within a day or two of the appointment and are mailed to the petitioner's attorney or to the appointed guardian. Letters of Office serve as the guardian's legal authority to act on behalf of the principal from the date of issuance until they are revoked.