Western Region Transition Planning
Home > Health & Legal Care > Guardianship and Alternatives
The subject of guardianship for an adult child who is disabled is of
concern to most parents.
Parents of children who have a disability often assume that they can continue
to be their adult child’s
legal guardian during the child’s entire life. Although one’s
child may not have the capacity to make
informed decisions, legally, an adult is presumed competent unless otherwise
adjudicated
incompetent after a competency proceeding. In other words, once the child
reaches the age of 18,
the parent is no longer the child’s legal guardian.
The act of giving reasoned and well informed consent when making a decision
may be
beyond the adult child’s ability. In order to protect one’s child
from unscrupulous individuals who
may exploit the child’s inability to make informed choices, it is necessary
for families to familiarize
themselves with the various legal options available to protect a disabled
adult child. Following is
a brief description of guardianship and various alternatives to guardianship,
which should be
considered.
Guardianship is a legal means of protecting children and incompetent adults
who cannot take
care of themselves, make decisions that are in their own best interest, or
handle their assets. When
the court determines that a person is incapable of handling either their
personal and/or financial
affairs and appoints a guardian, the person who is disabled is referred to
as the guardian’s “ward.”
Whether to seek appointment of a guardian is obviously a complicated issue.
A petition for
guardianship should not be filed automatically simply because a child has
reached the age of
eighteen. Parents, or other potential guardians, must carefully consider
the disabled person’s
individual circumstances, including strengths and weaknesses, needs, and
best interests, before
beginning a competency proceeding. If the person is disabled but capable
of making some but not
all decisions, one or more of the alternatives to guardianship discussed
below should be considered.
Guardianship is just one means of protecting an adult who is not fully
competent. Less
intrusive alternatives include:
1. A joint bank account can be created to prevent rash expenditures. Arrangements
can be made with most banks for a disabled person’s benefits check,
such as Social Security or SSI
payments, to be sent directly to the bank for deposit. In addition, a permanent
withdrawal rider can
be arranged with the bank authorizing the bank to send certain sums of money
on a regular basis to
a specified party, such as the landlord, or the person who is disabled, for
pocket money, thus
providing structure to allow for budgeting and money management.
2. A Representative Payee can be named to manage the funds of a disabled
person
who receives benefits checks from Social Security or the Veteran’s
Administration, for example.
Benefits checks are sent to the representative payee who manages the funds
and spends them for the
benefit of the individual with the disability. The representative payee has
authority only over income
from the particular check(s) for which s/he is payee. The person who is disabled
would still make
personal decisions.
3. A Durable Power of Attorney for Property is useful for persons who are mildly or moderately incapacitated and capable of choosing another person to handle their money. The power of attorney (P.O.A.) is a legal document that grants one person the legal authority to handle the financial affairs of another. If executed before incapacity, a “durable” P.O.A. continues the authority in the event the individual becomes disabled or incapacitated. There are both drawbacks as well as advantages to use of a P.O.A. The incapacitated person still has the legal authority to make decisions. For example, they can commit to a contract which is not in their best interest and can be held to that contract. Also the person can withdraw the P.O.A. at anytime and can remove the agent verbally or by the physical act of destroying the P.O.A. A person with a history of mental illness may, therefore, remove his/her agent at a time when an agent is most needed.
4. A Durable Power of Attorney for Health Care should be considered
for individuals who are presently capable of making decisions about their
health care, but
wish to anticipate possible
future incompetency. A Durable Power of Attorney for Health Care is a legal
document that enables
a competent individual (the “Principal”) to designate a health
care agent to make health care
decisions should the individual become incompetent to make them or need assistance
in making or
voicing such decisions. The health care agent is authorized to make all health
care decisions,
including decisions about life-sustaining treatment. In many ways, designating
an agent to make
such decisions eliminates the need for a guardian of the person. The P.O.A.
for Health Care must
be a written document, signed by the Principal who must be age 18 or older,
and properly witnessed.
The Principal may revoke the P.O.A. at any time and in any manner that demonstrates
specific intent
to terminate the power. The P.O.A. for Health Care goes into effect at the
time the power is signed,
continues until the death of the principal and under some circumstances thereafter,
unless the P.O.A.
expressly provides for a limitation on the beginning date or duration.
5. The Mental Health Treatment Preference Declaration Act is useful
for individuals with a history of mental illness. The Act authorizes an adult,
18 years or
older, or a legally
emancipated minor (the “Principal”), to execute a Declaration
in order to provide instructions about
mental health treatment if, in the future, the person is not able to make
those decisions. The
instructions can include whether the Principal agrees, or refuses, to have
psychotropic medication,
electroconvulsive treatment, or admission to a mental health facility used
in his or her treatment.
The Principal can designate an “attorney-in-fact” to either make
mental health treatment decisions
on his or her behalf, and/or make sure the treatment instructions in the
Declaration are followed. The“
attorney-in-fact” need not be a lawyer. The Declaration must be in
writing, signed by the Principal,
and by two witnesses. The Declaration cannot be canceled unless: (1) the
Principal makes a written
statement that s/he is canceling the Declaration; (2) the statement is signed
by a Doctor; and (3) the
statement is given to the person’s attending Physician. The Declaration
becomes effective if the
Principal is found incapable of making his/her own mental health treatment
decisions by two doctors
or by a judge. Doctors and other health care providers must follow the instructions
in the
Declaration, except in cases of emergency or unless other treatment is ordered
by a Court. The
Declaration remains in effect until the Principal is found capable of making
his or her own treatment
decisions after evaluation by a physician, and upon agreement by both the
physician and Principal.
A Declaration can, however, expressly limit the time frame during which the
Declaration remains
in effect, even if the Principal is still found incapable of making his or
her own treatment decisions.
6. If no guardianship is in effect, the Health Care Surrogate Act authorizes
an adult
with decisional capacity, or a surrogate decision maker as defined, to decide
whether to forgo lifesustaining,
or any other form of medical treatment. A surrogate decision maker is authorized
to
make medical treatment decisions or to end life-sustaining treatment under
certain conditions on
behalf of patients lacking decisional capacity and without judicial involvement
of any kind. If a
guardianship is in effect, however, some jurisdictions do require court notification
and/or permission
to make these decisions despite the Act. Further, the Illinois Living Will
Act authorizes an adult or
an emancipated minor, of sound mind to execute a document directing that
if s/he is suffering from
a terminal condition, then death delaying procedures shall not be used to
prolong his/her life.
7. Trusts may be an appropriate alternative to appointment of a Guardian
in some
circumstances. A trust is a legal plan for placing funds and other assets
in the control of a trustee
for the benefit of an individual with a disability. Creating a trust will
be less expensive than a
guardianship, in that no bond is required; it will keep the courts, and their
associated costs, out of
one’s life (in most cases permission of a court is not needed to make
disbursements from the trust
or to make investments); and, it protects the beneficiary’s assets
without requiring that a disabled
person be declared incompetent by a court. A trust may also make it possible
for the beneficiary to
receive the advantage of extra income without losing valuable state and federal
benefits. Trusts for
the benefit of a person who is disabled should be established with the help
of a lawyer experienced
in wills and trusts and familiar with the law relating to government disability
benefits. A trust set
up without regard to the eligibility laws may disqualify a person who is
disabled from SSI, Medicaid,
and other important benefits.
8. Guardianship is an option for persons who, because of mental illness,
developmental disability, or physical disability, lack sufficient understanding
or capacity to make
or communicate responsible decisions concerning their care, and/or are unable
to manage their
financial affairs. Guardianships are supervised by the Court.
a. A Guardian of the Person is responsible for monitoring the care of the
ward. The
guardian need not use his/her own money for the ward’s expenses, provide
daily supervision
of the ward, or even live with the ward. However, the guardian must attempt
to ensure that
the ward is receiving proper care and supervision, and the guardian is responsible
for
decisions regarding most medical care, education, and vocational issues.
For highly unusual
decisions which were not anticipated at the time of the original guardianship
hearing, the
guardian ask the court for instructions. Decisions involving intrusive forms
of treatment,
such as administration of antipsychotic medication, sterilization, and the
withdrawal of lifeprolonging
treatment, must be made by the court. Generally, the guardian will be required
to report annually on the status of the ward.
b. A Guardian of the Estate should be considered for persons with disabilities
who are
unable to manage their finances, and who have income from sources other than
benefit
checks, or have other assets and/or property. Appointment of a Guardian of
the Estate is not
required by law unless the value of the Ward’s assets exceed $10,000.
In some
circumstances, however, a Guardian of the Estate may be appointed even if
the value of
ward’s assets is less than $10,000. Government benefits payments are
generally not
considered income/assets for this purpose. The guardian is responsible for
handling the
ward’s financial resources but is not personally financially responsible
for the ward from
his or her own resources. The guardian must file an annual accounting of
the ward’s funds
with the court.
c. A Guardianship may be limited to certain areas of decision making, such as decisions about medical treatment, or the guardian may be granted narrowly defined authority over certain issues such as the ward’s finances, in order to allow the ward to continue making his/her own decisions in all other areas. The benefit of a limited guardianship is that the specific duties and responsibilities of the guardian can be tailored to fit the ward’s special needs in the least restrictive manner. Further, under a limited guardianship, the ward has not been declared incompetent.
1. A Petition has to be filed with the court in the county where the
person with a disability
resides. If the person is a non-resident of Illinois, the petition can be
filed in the county
where the person owns property.
2. The petition can be filed by the disabled person, or any other responsible
person. The
petitioner need not be the person who will act as guardian, however, a person
willing to be
appointed the guardian must be named in the petition. The proposed guardian
must be 18
years of age, a resident of the United States, and cannot be a convicted
felon. A public
agency, or a not-for-profit agency, can be appointed guardian unless that
agency is providing
residential care to the ward. One person or agency can be appointed guardian
of the person,
and another guardian of the estate. A parent can designate whom they choose
as successor
guardian, but that person must be appointed by the court. If the disabled
individual feels
his/her guardian is not doing a good job, s/he can petition the court for
the guardian's
removal.
3. The person who is disabled (“respondent”), must be served
with a summons, a copy of the
petition, and a notice explaining the respondent’s legal rights in
the proceeding.
4. Close relatives of the respondent must receive notice of the filing of
the petition, and of the
hearing date, so that they have an opportunity to object. Once a petition
is filed, it cannot be
dismissed without a court order.
5. A medical report completed by a licensed physician who has seen the respondent
within 3
months of the date petition is filed must be presented to the court. The
physician must state
an opinion regarding the necessity, and the appropriate scope of, the guardianship.
6. When the petition is filed, a hearing date is set and a guardian ad litem
(“GAL”) may be
appointed. The GAL is responsible for protecting the respondent from being
subjected to a
guardianship unless s/he really wants it, or needs it. The GAL is entitled
to compensation
at reasonable rate for attorneys in the area. The GAL visits the respondent,
consults with
specialists as needed, advises the respondent regarding the right to be represented
by counsel,
and makes a recommendation to the court as to his or her observations and
opinion regarding
the need for a guardian.
7. A petitioner can ask the court to waive appointment of a GAL if the respondent
is severely
disabled, has no estate, and the need for guardianship is obvious. Waiver
of a GAL’s
appointment eliminates the associated fees and costs which can double the
total cost of the
guardianship proceeding.
8. A temporary guardian may be appointed in an emergency situation when certain
decisions
must be made immediately. The judge must be convinced that a temporary guardianship
is
necessary for the immediate welfare and protection of the respondent. A petition
for
guardianship must have already been filed, or must be filed at the same time,
as a petition for
temporary guardianship. A temporary guardian is appointed for a maximum of
60 days.
9. A hearing will be held, and the judge will weigh the evidence regarding
the need for a
guardianship. The judge may appoint an attorney to represent the respondent
in some cases,
and will always appoint an attorney if the respondent requests one, or if
the respondent
disagrees with the recommendation of the GAL. The respondent can request
a 6 person jury,
and can testify and cross examine witnesses. The respondent or the GAL can
ask for
independent experts to look into the respondent’s background.
10. If the court finds that the respondent completely lacks the capacity
to make or communicate
responsible decisions concerning his or her care, and/or is unable to manage
his/her financial
affairs, the court will appoint a plenary guardian for the respondent’s
person, estate or both.
The guardian has full decision making authority but must seek court approval
on major
decisions. The guardian does not have power, for example, to authorize a
sterilization,
abortion, or experimental surgery without first receiving approval from the
court.
11. If the court finds that the respondent is disabled and lacks some, but
not all of the necessary
capacity, and that a guardianship is necessary for the protection of the
person, or his/her
estate, or both, the court may appoint a limited guardian. The order appointing
the guardian
will specify the duties and powers of the guardian. One might think that
with all the
protection afforded the respondent when a petition for guardianship is filed,
that courts favor
not unduly restricting respondents. However, most appointments are for full/plenary,
and not
limited, guardians.
12. A guardian is required to swear, under oath, to faithfully perform the
assigned duties and
must post a bond. A guardian of the person does not have to secure the bond,
but a guardian
of the estate must obtain a surety bond. If the bond is obtained from a bonding
company, the
amount must be equal to one and one-half times the value of the ward’s
personal estate. If
an individual acts as surety, the amount must be equal to two times the value
of the ward’s
personal estate. The amount must also include the annual income, if any,
from real estate.
The bond premium can be paid for out of the ward’s estate.
13. A guardian of the person must make an annual report to the court regarding
the ward’s
condition, residence, current address, and any major changes that have occurred
in the ward’s
life during the year. A guardian of the estate, or a conservator, must present
an annual
accounting.