Editors' Note: This article is the second in what is hoped to be a series of articles written by government lawyers with expertise in an area of law in which family and friends often pose questions. We welcome additional articles in this regard.
In a previous article, I reviewed advanced directives and how they may be utilized.* This article will look at what happens when a person has deteriorated to the point that he or she does not have the capacity to execute an advanced directive or never had capacity. As discussed in my previous article, medical decisions may be made for a person lacking capacity under the Health Care Surrogate Act. 755 ILCS 40/1 et seq. Under that Act, a surrogate may not address non-medical decisions such as where the person will live, how his or her funds will be spent and who may see the individual's records. For decisions in those areas and many others, a guardian must be appointed.
In this article I will examine the process of appointing a guardian, focusing on the differences from other civil actions. I will then look at how a guardian performs his or her duties. First, though, a couple of terms you will see in this article should be explained. The term "alleged disabled person" designates those persons who are believed to be incapable of making decisions and those persons who are subject to guardianship proceedings until the permanent guardian has been appointed. As used in the Probate Act of 1975, the phrase "disabled person" refers to:
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. 755 ILCS 5/11a-2.
Once a permanent guardian has been appointed, the person is called a "ward." In some older files you may see the term "conservator," the person appointed to make decisions regarding the ward's property. Under current Illinois law, the Probate Act of 1975 refers to that person as the "guardian of the estate" or "estate guardian." 755 ILCS 5/11a-18.
The appointment of a guardian
All guardianship proceedings are actions before the circuit court. Forms necessary to establish a guardianship are available in every circuit clerk's office. The forms for guardianship cases are somewhat specialized and general civil forms would be difficult to modify. The Illinois Institute for Continuing Legal Education has published a QuickGuide on guardianship with forms included and will publish a more extensive volume of guardianship and mental health law next year.
To initiate a guardianship proceeding, it is necessary to prepare and file a petition, accompanied by a physician's report, a guardianship summons and an Order Appointing Guardian Ad Litem. The petition contains the allegations that must be pleaded for the appointment of a guardian. 755 ILCS 5/11a-8. Unlike most petitions or complaints, the Petition for Adjudication of Disability and Appointment of Guardian must also list the nearest known relatives and close friends of the alleged disabled person, an estimate of the alleged disabled person's assets, both real and personal, and the alleged disabled person's estimated annual income. The petitioner usually nominates the person he or she thinks should serve as guardian in the petition. In most cases, the nominated person will be a relative or friend of the alleged disabled person. They know him or her best and in theory would be best able to decide matters as the alleged disabled person would want. The statutory requirements for who may serve as a guardian are not very rigid. The guardian must be at least 18 years of age, not suffer from a mental defect, be a resident of the United States and not be a convicted felon. 755 ILCS 5/11a-5. The requirement that the guardian of the estate had to be a resident of Illinois was removed from the statute.
If there are no willing or suitable family or friends to serve, then other options for the guardian must be explored. There are, throughout Illinois, local voluntary organizations that serve as guardians. The best way to find such organizations would be to contact the circuit clerk's office, probate division. Each county also has a public guardian that handles cases where estates are larger than $25,000. The activity level of the public guardian varies according to local custom and the willingness of the public guardian. For more on the pubic guardians, please review article 13 of the Probate Act. 755 ILCS 5/13-1 et seq.
For cases where the estate of the alleged disabled person is less that $25,000, the State of Illinois has established the Office of State Guardian, a part of the Illinois Guardianship and Advocacy Commission. 20 ILCS 3955/1 et seq. This writer is an attorney for the Office of State Guardian. The Office of State Guardian serves as guardian of last resort, accepting an appointment only when no other suitable guardian can be found. To refer cases to the Office of State Guardian you may contact its intake office at (866) 274-8023. The Intake Office can also provide the name and contact information for your county public guardian. More information on the Office of the State Guardian and on guardianship in general may be found on the agency's Web site: <http://gac. state.il.us/>.
If the estate of the alleged disabled person is very large, the petitioner may wish to appoint a bank or other financial institution as guardian of the estate. Such an institution may be better positioned to invest and manage large sums of money. The guardian of the estate and the guardian of the person do not need to be the same person or entity. A bank may be willing to serve as guardian of the estate but unwilling to handle the duties of a guardian of the person. Another person or entity may be appointed guardian of the person.
A physician's report should be filed with the circuit clerk at the same time the guardianship petition is filed. 755 ILCS 5/11a-9. This report, usually in the form of an affidavit, is a functional assessment of the abilities of the alleged disabled person and his or her abilities to make decisions. As the name implies, the report must be signed by at least one physician who has examined the alleged disabled person within three months of the date the petition is filed. If for some reason the report cannot be obtained, such as if the alleged disabled person refuses to see a doctor, then the petitioner may file his or her petition and request that the court order that the alleged disabled person submit to an examination.
A guardian ad litem (GAL) will be appointed at the time of the filing of the petition or soon thereafter. 755 ILCS 11a-10(a). A written order for the appointment needs to be prepared and presented by the petitioner. How the GAL is chosen is a matter of local practice. Some counties maintain a list and the GAL is whoever is next on the list. In other counties the judge appoints the GAL and attempts to choose so the burden is evenly spread. In still other counties, the same person serves in almost all cases. You should consult with the circuit clerk or the judge's office to determine how the GAL is selected in the particular county.
The circuit clerk will issue a summons after the petition is filed. 755 ILCS 5/11a-10(e). Unlike a summons used in most civil matters, the summons for guardianship will name a date and time certain for return. How that date and time are chosen is a matter of local custom. Many counties have regular walk-in times where uncontested guardianship cases may be presented. The petitioner may choose one of those regularly scheduled times that will allow time for the sheriff to serve the summons on the alleged disabled person (14 days notice, not the more familiar 30 days on most civil summonses, required before the hearing in guardianship cases). In other counties, the judge will want to set the matter on his or her calendar for hearing. Unlike other summonses, those used in guardianship cases must list the name and telephone number of the judge who will hear the case. Finally, the summons must have a statement of the rights of the alleged disabled person in guardianship matters. The rights are:
1. You have the right to be present at the court hearing.
2. You have the right to be represented by a lawyer, either one that you retain, or one appointed by the judge.
3. You have the right to ask for a jury of six persons to hear your case.
4. You have the right to present evidence to the court and to confront and cross-examine witnesses.
5. You have the right to ask the judge to appoint an independent expert to examine you and give an opinion about your need for a guardian.
6. You have the right to ask that the court hearing be closed to the public.
7. You have the right to tell the court whom you prefer to be your guardian.
In addition to the alleged disabled person, those listed as family and friends of the alleged disabled person in the petition, as well as the proposed guardian, if the guardian is to be someone other than the petitioner, must receive 14 days written notice of the date and time of the hearing. Failure to provide notice is a jurisdictional flaw that will render the order void. 755 ILCS 5/11a-10(f); Seibold v. Schulte, 195 Ill. App. 3d 891 (5th Dist. 1990); Wright v. Carley, 172 Ill. App. 3d 1055 (4th Dist. 1988).
Where there is a need for immediate protection of the alleged disabled person or his or her estate from harm during the period of time between the filing of the petition and the date of the hearing, a petition for the appointment of a temporary guardian may be filed. 755 ILCS 5/11a-4. The filing of the petition for temporary guardian is usually done at the same time as the filing of the petition for a permanent guardian. The petition for a temporary guardian may be presented to the judge immediately after filing and an order may be entered on such notice as the court directs. In most cases, no notice is given to the alleged disabled person. Hasse v. Arbor of Itasca, Inc., 327 Ill. App. 3d 1057 (2nd Dist. 2002). The order appointing a temporary guardian must state the actual harm identified by the court as necessitating the need for the appointment. The order must also innumerate the specific powers that the temporary guardian may exercise. The term of the temporary guardian is no longer than 60 days or until the appointment of the permanent guardian and may not be extended. Meanwhile, the process toward a hearing on the petition for permanent guardian continues.
Prior to the hearing for the appointment of a permanent guardian, the GAL must visit the alleged disabled person and inform him or her about his or her rights during the guardianship process and the contents of the guardianship petition. The GAL should also talk to the alleged disabled person and those who are familiar with his or her condition to determine both the appropriateness of the guardianship and the alleged disabled person's view on whether a guardian should be appointed and, if so, who that guardian should be. The GAL must then prepare a written report of his or her actions and findings and file it with the court. The GAL should also appear at the time of the hearing to elaborate on the report if the court desires further information.
If the alleged disabled person disagrees with the appointment of a guardian, then independent counsel should be appointed to represent the alleged disabled person at the guardianship hearing. In the past, the GAL often served in that capacity but changes in the law have made that a more neutral role. In consultation with the independent counsel, the alleged disabled person may demand an independent medical examination and trial by a six-person jury. The decision to exercise the right to independent examination and trial by jury are matters of trial strategy and must be considered carefully. It is not uncommon for the independent medical examiner to agree that the alleged disabled person is in need of a guardian. Having the alleged disabled person's own physician make that recommendation would, of course, be very detrimental to the position of one contesting the appointment. Likewise, citizens who are called to serve as jurors may not be as accustomed to seeing unique characters as would a judge who sees them every day in court. If the alleged disabled person would not present well to a jury or has a unique lifestyle, it may be wiser to try the case before the judge alone.
Most guardianship hearings, however, are uncontested affairs that take place with the parties gathered at the bench. If the alleged disabled person does not object to the appointment or is in such a condition that he or she is unable to object, many courts will not require that witnesses be called. The judge makes his or her decision based upon the statements of the attorneys, the report of the GAL and the physician's report. If witnesses are required, the testimony is often limited, involving the observed activity of the alleged disabled person tending to show that the alleged disabled person is unable to make decisions for himself or herself.
After the hearing, the jury, or in a bench trial, the judge, will make a determination of whether a guardian should be appointed, and if there is to be a guardian, who that guardian should be. The alleged disabled person has the right to make his or her wishes known as to who should serve, but ultimately the decision on who should be appointed guardian is made by the judge based on what is in the best interest of the disabled person. 755 ILCS 5/11a-8(d). It is not uncommon in cases where the alleged disabled person has been abused or exploited, either physically or financially, for the alleged disabled person to choose his or her abuser as the guardian. Obviously, such an appointment would not be in the alleged disabled person's best interest. At times, even well meaning individuals may not be appropriate if it does not appear they have the ability to carry out their duties. 755 ILCS 5/11a-12(d).
The written order issued by the court must give the factual basis for the need to appoint a guardian. The order will also state whether the ward is in need of a guardian of the person, of the estate or of both. The order should indicate whether the guardian will be limited, granting the guardian the authority to make some but not all of the decisions for the ward, or plenary, where the guardian has all of the power that can be exercised by a guardian on behalf of another. 755 ILCS 5/11a-12. If the guardian is someone other than the Office of State Guardian or the public guardian, the order must specifically provide for residential placement if the guardian is to have that power. 755 ILCS 5/11a-14.1.
After the order is entered, the guardian will have to file an oath of office agreeing to accept the case and promising to carry out his or her duties faithfully. If appointed guardian of the estate, the guardian will also be required to file a satisfactory bond. 755 ILCS 5/12-2. The amount of the bond is twice the value of the personal property if personal sureties are used, and 11⁄2 times the personal property if a commercial bond is obtained. Additional amounts may be added by the court where the real estate of the ward is under the control of the guardian. The judge must approve the bond. Many circuit clerks' offices have a form oath and bond combining the two documents.
After the oath and bond are filed, the circuit clerk will issue letters of office to the guardian and will provide the guardian with certified copies of the letters of office. It is the letters of office that the guardian will show as proof of appointment. At times, a bank or other entity dealing with the guardian may require that the letters of office be recertified to demonstrate that the guardianship is still in effect. The guardian will then have to contact the circuit clerk and ask the clerk to sign, date and seal the bottom certificate form on the letters of office.
If sufficient, the estate of the ward is required to pay for the costs of bringing a guardianship case, including the fees of the GAL and of the independent counsel. If the estate of the ward is not sufficient, it becomes the obligation of the petitioner to pay those costs. 755 ILCS 5/11a-10(c).
The guardian's duties
So the guardian is appointed. Now what? How is the guardian to go about his or her duties? The section of the Probate Act dealing with the guardianship is thin, only a few pages in length. Moreover, the case law is scant, usually addressing a particular circumstance or event. Some of the direction that is provided often seems contradictory and confusing. The powers of a guardian are great. A plenary guardian will make decisions concerning nearly every aspect of the ward's life. Often, however, the guardian must look at what is provided in the statutes and the case law and attempt to extrapolate how he or she should make a particular decision. When in doubt about a crucial issue, the guardian may return to court and seek its advice on how to deal with a particular situation.
Guardians are required to make their decisions, whenever possible, based on substituted judgment: to take what the guardian knows of the ward, his or her beliefs and attitudes, and attempt to make the decision the ward would have made if he or she was capable of doing so. When the guardian is unable to determine what the ward would want, the guardian must make his or her decision based on what is in the ward's best interest. What would a reasonable person do if required to make the decision? 755 ILCS 5/11a-17(e). Neither of these standards is wholly satisfying. It is impossible to truly know what a person would want or what is in the ward's best interest in a particular circumstance. But at least this instruction gives the guardian a framework upon which he or she can begin to make decisions.
Guardian of the person
As the name implies, the guardian of the person makes personal decisions for the ward. Section 11a-17 of the Probate Act provides general instructions for the guardian of the person. 755 ILCS 5/11a-17. The grant of statutory authority includes medical decisions, from minor first aid to end-of-life decisions. As was noted in the previous article on advanced directives, the guardian of the person is the first person listed on the hierarchy of surrogates under the Health Care Surrogate Act. 755 ILCS 40/25. Thus, some minor care decisions may be made in advance with directions to the caregivers.
The guardian of the person also makes decisions on where a ward will live, if that authority is specifically granted in the court's order. The guardian must take into account the ward's preferences but may have to decide contrary to those preferences where the ward's wishes have a reasonable certainty to result in harm to the ward or his or her estate. The guardian should look to what is the least restrictive placement for the ward that provides for his or her needs. The guardian of the person may, but is not required to, provide personal care for the ward. It is not required that the ward live with the guardian. A guardian is a decision-maker. It may often be the case that others, community providers, nursing home staff, or others, provide the actual care.
The guardian of the person also has access to all of the records of the ward. The guardian may review the ward's medical or facility chart and may be asked to authorize the sharing of that information as is necessary for the benefit of the ward. This is often required where a ward sees several doctors or information from a doctor needs to be provided to the ward's residence so that the doctor's orders may be carried out.
The case law setting out the extent of a guardian of the person's authority may be summarized as follows:
• The guardian may not consent to psychotropic medication or elecotroconvulsive therapy over the objection of the ward. Such decisions may only be made pursuant to the Mental Health and Developmental Disabilities Code (405 ILCS 5/2-107.1). In re Austin, 245 Ill. App. 3d 1042 (4th Dist. 1993).
• The guardian may not place a ward in a mental health facility or in a specialized portion of a nursing home or other facility specializing in the care of persons with mental illness. In re Gardner, 121 Ill. App. 3d 7 (4th Dist. 1984); Muellner v. Blessing Hospital, 335 Ill. App. 3d 1079 (4th Dist. 2002).
• The guardian may not bring an action for divorce on behalf of a ward. In re Marriage of Drews, 115 Ill. 2d 201 (1986). But a guardian may maintain an action for divorce filed by the ward when he or she was able to do so. 755 ILCS 5/11a-17 (a-5); In re Marriage of Burgess, 189 Ill 2d 270 (2000). The question of what is the guardian's authority to consent to or prevent marriage is not yet settled. Pape v. Byrd, 145 Ill. 2d 13 (1991).
• A guardian may consent to an abortion on behalf of a ward. Jolivet v. Chuhak, 134 Ill. App. 3d 788 (1st Dist 1985).
• A guardian may not remove driving privileges. Thompson v. Patner, 186 Ill. App. 3d 874 (1st Dist. 1989).
The guardian is required to make periodic reports to the court on the progress of the ward and his or her circumstances. Usually these reports are required annually. 755 ILCS 5/11a-17(b). Forms for making the report may be found on the Illinois Guardianship Commission Web site http://gac.state.il.us/ under "Legal Forms You Can Use." The guardian of the person can serve as representative payee for Social Security benefits. Some pensions and annuities will also pay to a guardian of the person or in accordance with the guardian's directions. Some investigation of these issues prior to appointment may eliminate the need for a guardian of the estate and the requirements that come with that office.
Guardian of the estate
The guardian of the estate is charged with the prudent management of the ward's property, both real and personal. Section 11a-18 of the Probate Act provides general instructions to the guardian of the estate. 755 ILCS 5/11a-18. The guardian of the estate begins his or her service with the filing of an inventory. 755 ILCS 5/14-1. The inventory is a listing of all of the assets in the ward's estate on the date that the guardian of the estate is appointed. The inventory must be filed within the first 60 days after appointment. The guardian of the estate is a fiduciary. He or she is required to care for the ward's estate to maximize the benefit to the ward.
One of the most important things a guardian of the estate should do after appointment is to set up a separate account to manage the assets of the ward. The most frequent error that people make as the guardian of the estate is to commingle the guardian's personal funds with those of the ward's estate. To some extent, commingling of funds may feel natural to the guardian. This is especially true when the ward is a family member and lives with the guardian. All of the household money goes into an account and is used to pay the bills of the household. However, the guardian of the estate is required to account for all of his or her actions. An accounting must be filed on the first anniversary of appointment and then at least every three years thereafter. An accounting must also be filed at the close of the estate. 755 ILCS 5/24-11. In this accounting, the guardian of the estate must be able to demonstrate how each asset of the estate and every item of income has been expended for the benefit of the ward. Any remaining funds are shown and form the beginning balance for the next accounting. If the guardian has commingled personal funds with those of the ward, it is nearly impossible to demonstrate which expenditures were made for the ward's benefit and which for the guardian's. The guardian of the estate may be required by the court to reimburse those funds that he or she cannot document as having gone to the ward's benefit. It is still possible for the estate of the ward to pay a portion of the guardian's household expenses. The ward is using items just like other members of the residence. The guardian can use the ward's funds to pay certain bills while using their own funds to pay others. At accounting time, the guardian will then be able to show where the funds of the ward went specifically. If the division of the bills appears to be fair, the courts generally do not have a problem with such an arrangement.
With the approval of the court, the guardian of the estate may be required to sell real and personal property of the ward in order to meet the ward's needs. Procedures for the sale of real estate are found in article 20 of the Probate Act. 755 ILCS 5/20-1 et seq. Those for the sale of personal property are found in article 19 of the Probate Act. 755 ILCS 5/19-1 et seq.
Inability of the guardian to serve
Another area of concern is what to do if the guardian becomes temporarily or permanently unable to serve. If the guardian is unable to carry out his or her duties for a brief period of time, such as if the guardian becomes ill or is going to be away for a time on business or vacation, the statutes provide for the appointment of a short-term guardian. A form for the appointment of a short-term guardian is set forth in the Probate Act. 755 ILCS 5/11a-3.2. The form may also be found on the Illinois Guardianship Commission Web site http://gac.state.il.us/under "Legal Forms You Can Use."
A short-term guardian may serve no more than 60 days in any 12-month period. Appointment of the short-term guardian does not require court action. The ward's views on the person to serve as short-term guardian must be taken into consideration. If the ward objects to the person who has been appointed, the ward may request that the court terminate the short-term guardian. 755 ILCS 5/11a-18.3(a). The short-term guardian has all of the powers of the permanent guardian of the person, unless that authority is limited in the appointing instrument. The authority of the short-term guardian over the estate of the ward is limited to the collection of public benefits such as Social Security funds. 755 ILCS 5/11a-18.3(b).
To plan for the possible death or incapacity of the permanent guardian, the Probate Code provides for a standby guardian. Again, a form is provided in the statutes and may be found on the Illinois Guardianship Commission Web site under "Legal Forms You Can Use." The form designating a standby guardian may be filed with the court either at the time the permanent guardian is appointed or a later date. The court appoints the standby guardian. The standby guardian has no duties until he or she is notified of the death or disability of the permanent guardian. At that time, the standby guardian steps into the shoes of the permanent guardian. The standby guardian has authority to act for up to 60 days. During that period, he or she may file a petition with the court asking to be appointed as permanent guardian. 755 ILCS 11a-18.2.
The Probate Act also provides for the nomination of a successor guardian by the permanent guardian in his or her last will and testament. The nominated person is a testamentary guardian. 755 ILCS 5/11a-16. Unlike the standby guardian, the testamentary guardian has no authority to act on behalf of the ward until he or she appears in court and is appointed successor guardian. If no successor is named in either the guardian's last will and testament or by appointing a standby guardian, then any interested person may file a simple petition detailing the permanent guardian's inability to serve and the ward's continuing need for a guardian. 755 ILCS 5/11a-15. The court will usually appoint a successor guardian with little delay. The benefit of the standby guardian is that there is no gap in guardianship for the ward. The standby guardian serves essentially like a temporary guardian during that period of time between the death or disability of the permanent guardian and the appointment of a successor.
So now we have learned about advanced directives and the guardianship process. I encourage others of you who have expertise in common areas of the law to take the time to write an article so that other government attorneys may benefit from your knowledge.
*See "A Short Course on Advanced Directives," ISBA's Committee on Government Lawyers newsletter, August 2003, Vol. 5, No. 1.