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February 2019Volume 49Number 6PDF icon PDF version (for best printing)

Understanding the requirements for adult guardianships

Effective January 1, 2019, the Illinois Legislature amended the Probate Act, 755 ILCS 5/11a-17(g)(2), to give spouses, adult grandchildren, parents and adult siblings the right to petition for visitation with adults over whom guardianship has been established. Previously, the statute provided this right for adult children only. The court must consider any such petition in accordance with “what the ward, if competent, would have done or intended under the circumstances,” if that can be determined.1 If that cannot be determined, the court must act in the ward’s best interests; however, “[t]he court shall not allow visitation if the court finds that the ward has capacity to evaluate and communicate decisions regarding visitation and expresses a desire not to have visitation with the petitioner.”2

Similarly, the Illinois Legislature passed the Frail Elderly Individual Family Visitation Protection Act, 750 ILCS 95/1, et seq., effective January 1, 2019. This Act allows a spouse, adult child, adult grandchild or other close relative to petition for visitation with a “frail elderly individual,” as that term is defined in the Act, if a family caregiver unreasonably prevents such visitation.3 This Act specifically does not apply to adults under a guardianship or if the family caregiver is acting under a power of attorney.4

These statutory changes are good reminders of the need to look carefully at the Probate Act and its requirements for establishing guardianships for adults with disabilities. It is a good time to be reminded of the appropriate balance that must be struck between being protective and yet maximizing each individual’s ability to make independent decisions.

Section 11a-3 of the Illinois Probate Act of 1975, 755 ILCS 5/11a-3, (hereinafter, the “Act”) grants the court the authority to appoint guardians for adults with disabilities. That section provides in relevant part as follows:

(a) . . . the court may adjudge a person to be a person with a disability, but only if it has been demonstrated by clear and convincing evidence that the person is a person with a disability as defined in Section 11a-2. If the court adjudges a person to be a person with a disability, the court may appoint (1) a guardian of his person, if it has been demonstrated by clear and convincing evidence that because of his disability he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the care of his person, or (2) a guardian of his estate, if it has been demonstrated by clear and convincing evidence that because of his disability he is unable to manage his estate or financial affairs, or (3) a guardian of his person and of his estate.

(b) Guardianship shall be utilized only as is necessary to promote the well-being of the person with a disability, to protect him from neglect, exploitation, or abuse, and to encourage development of his maximum self-reliance and independence. Guardianship shall be ordered only to the extent necessitated by the individual's actual mental, physical and adaptive limitations.

Clear and convincing evidence “is ‘that quantum of proof which leaves no reasonable doubt in the mind of the trier of fact of the truth of the fact in issue.’”5

A person with a disability is defined as follows:

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, or (d) is diagnosed with fetal alcohol syndrome or fetal alcohol effects.6

It is important to note that “to simply establish certain disabilities is alone insufficient to support the determination of incompetency, the evidence must also show the respondent's incapability of managing her person or estate.”7

Moreover, “[t]he capability to manage one's person does not resolve itself upon the question of whether the individual can accomplish tasks without assistance but rather whether that individual has the capability to take care and intelligently direct that all his needs are met through whatever device is reasonably available under the circumstances.”8 “[A]lthough a person may be disabled in the statutory sense of not being fully able to manage his person, a disabled person still could direct others in such activity and therefore would not necessarily need a guardian over his person.”9

In McPeak, for example, the appellate court affirmed the finding that the alleged disabled adult, “by purposefully entering a nursing home and executing power of attorney in her son, showed herself to be capable to protect herself and her property by intelligently and responsibly exercising her rights and recognizing her limitations.”10
In In re Estate of Kusmanoff, 2017 IL App (5th) 160129, ¶ 85, 83 N.E.3d 1144, 1172, the appellate court reversed the finding that respondent required a guardian of her person where “[t]here is no clear and convincing evidence in the record from which the circuit court could conclude that MaryLou's mild to moderate cognitive deficits, manifesting as short-term forgetfulness and periods of confusion, prevent MaryLou from communicating to others regarding her desires with respect to her living arrangements and the direction of her care” and noting the “relatively high standard to appoint a guardian of the person.”

In short, “a person might be a ‘disabled person’ but nevertheless not be in need of a guardian over his estate, because, with help from others he is able to direct and manage his affairs and estate.”11

Section 11a-9 of the Act, 755 ILCS 5/11a-9, also indicates that a petition for guardianship should be accompanied by a written report from a licensed physician, based on an evaluation conducted within three months of the date the petition is filed. If no report accompanies the petition for guardianship, the court is required to order appropriate evaluations to be performed and a report to be prepared.12 The Probate Act further directs as follows: “[u]pon the filing of a petition pursuant to Section 11a-8, the court shall set a date and place for hearing to take place within 30 days.”13 The appellate court has recently indicated its concern with a guardianship case which remained pending for nearly a year.14 The court in Kusmanoff noted: “[t]his court is further troubled by the fact that for the majority of the time the petition for guardianship over MaryLou was pending, and temporary guardianship extended, there was no physician's report on file as required by section 11a-9 of the Probate Act.”15

Overall, the court in any guardianship case must balance the statutory requirement to protect individuals with disabilities, with the directive to encourage each individual’s development of maximum self-reliance and independence. It will be interesting to see how the courts maintain this balance in light of these new statutory provisions under the Probate Act, which requires clear and convincing evidence of the need for a guardianship, and the Frail Elderly Individual Family Visitation Protection Act, which does not.

1. 755 ILCS 5/11a-17(g)(2); 755 ILCS 5/11a-17(e).

2. Id. 

3. 750 ILCS 95/10.

4. 750 ILCS 95/25.

5. Patrick Media Group, Inc. v. City of Chicago, 255 Ill. App. 3d 1, 6, 626 N.E.2d 1066, 1070 (1st Dist. 1993).

6. 755 ILCS 5/11a-2.

7. Matter of McPeak's Estate, 53 Ill. App. 3d 133, 136, 368 N.E.2d 957, 960 (5th Dist. 1977); see also Matter of Mackey's Estate, 85 Ill. App. 3d 235, 238, 406 N.E.2d 226, 230 (3d Dist. 1980) (noting that the conclusions reached in McPeak and similar cases on this point were made “an express part of the statutory scheme for appointed guardians for disabled adults” with the amendments to the statute in 1979).

8. McPeak, supra note 7 at 960.

9. In re Estate of Fallos, 386 Ill. App. 3d 831, 839-40, 898 N.E.2d 793, 799-800 (4th Dist. 2008) (further noting “just how difficult it is to establish that a respondent completely lacks the ability to make or communicate responsible decisions regarding the care of his person, such that he would need a plenary or even a limited guardian”).

10. Id.; see also Fallos, supra note 6 at 799-800 (remanding for the court to consider a more limited guardianship for individual with severe physical disabilities and who had fallen in his home and not been found for three days); Galvin's Estate v. Galvin, 112 Ill. App. 3d 677, 682, 445 N.E.2d 1223, 1226 (1st Dist. 1983) (affirming trial court’s refusal to appoint guardian for individual who had a heart condition, organic brain syndrome and suffered hallucinations).

11. Mackey's Estate, supra note 7 at 230.

12. 755 ILCS 5/11a-9(b).

13. 755 ILCs 5/11a-10(a).

14. In re Estate of Kusmanoff, 2017 IL App (5th) 160129, ¶ 77, 83 N.E.3d 1144, 1170.

15. Id. at ¶ 78, 1170.

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