There are many types of Guardianships in Illinois some of which overlap. If you are considering seeking a Guardianship in Illinois it is important that you understand the terminology in considering what is necessary and in the best interest of the alleged disabled person, also known as the Ward.
1. Limited Guardianships
A limited guardianship is an option when a disabled person is able to make some of the disabled adult’s financial or personal decisions but not all. The Court will specify the decisions that a limited guardian is empowered to make. One could describe limited guardianship as more personalized to the disabled adult’s specific needs. That is to say, the disabled adult with a limited guardian retains as much control over his or her own affairs as is appropriate.
2. Plenary Guardianships
Total (plenary) guardianship should only be used when the person with disabilities is so incapacitated that the proposed Ward cannot make any decisions themselves. A plenary guardian generally has the power to make all decisions about personal care if appointed guardian of the person and/or finances for the disabled person if an appointed guardian of the estate. This type of guardianship is considered to be invasive into the Ward’s life.
3. Emergency Guardianships
In certain situations, an emergency arises which requires the appointment of a temporary guardian. Under the Illinois Probate Act, the Court may make a temporary appointment as follows:
“Upon a showing of the necessity therefor for the immediate welfare and protection of the alleged person with a disability or his or her estate on such notice and subject to such conditions as the court may prescribe.” 755 ILCS 5/11 a-4. A temporary guardianship is valid for up to 60 days.
4. Guardian of the Person
A guardian of a person can be a limited or plenary guardianship. A guardian of a person deals with the care, comfort, health, education, and anything related to non-financial aspects of the person. The guardian of the person is to use substituted judgment in making the decision. That is to say, the guardian is to try to determine what the disabled adult would have decided if able to decide and make that decision on behalf of the disabled adult. The Guardian of the Person does not have the authority to place the Ward in a residential facility without leave of court.
5. Guardian of the Estate
A guardian of the estate can be limited or plenary. This guardian has the authority to manage the ward’s property and finances. This guardian must report to the court and account to the Court all of the assets of the Ward and explain every expenditure made for the benefit of the Ward. This Guardian of the Estate has a fiduciary duty of care and must use the state for the benefit of only the Ward. The Guardian of the Estate may be able to sell assets for the Ward’s needs with approval from the Court.
6. Guardian of a Minor
When a parent is unable or unwilling to care for a minor, a guardian is appointed to care for the child. There are three types of guardian of a minor including plenary guardianship, standby guardianship or short term guardianship. A plenary guardianship of a minor involves court action and an appointment by the Court to provide care until the child reaches age 18. A short-term guardian is responsible for the child for one year or less. The parent or guardian picks the short-term guardian. The parent or guardian does not need to go to court, but the agreement must be in writing. A standby guardian automatically has the authority to act as full guardian for up to 60 days. Care must be taken to ensure you have fulfilled the requirements for any of these forms of guardianship for a minor.
7. Successor Guardianship/Standby Guardian
This a guardian appointed when the initial guardian dies, becomes disabled or resigns. A person may name a successor guardian in their estate plan and in that event the Court will give that election deference but is not bound by the appointment. The Court can also preselect the successor guardian by court order often referred to as a Standby Guardian. The standby guardian has no duties until the death or disability of the permanent guardian.
8. Testamentary Guardianship
This form of guardianship occurs when a person by will designates who will be his or her guardian of their person or estate or who they desire to be their child’s guardian in the event of death or disability. In most instances, the designated person must still be appointed by the court before he/she can serve as a guardian. The court will consider the designated person but is not bound by the testamentary designation. It can appoint someone else if the proposed guardian is found to be inappropriate.
In order to explore the types of guardianships that may be appropriate for you, contact the Sterk Family Law Group office at 815-600-8950.