Guardianship

Thomas J. Reilly
The Dignity Group
1163 East Ogden Avenue, Suite 705-354
Naperville, IL 60563
(630) 681-1119
E-Mail: dignitygroup@uus.net

Reprinted from the Workbook on the Special Needs and Services with Disabilities, 4^th edition, with the permission of The Dignity Group

What is Guardianship?

Adult guardianship is a legally instituted relationship established between an eligible adult or qualified charitable organization (as guardian), and a person adjudicated by a court to be "a disabled adult" (the ward), in which the guardian is empowered to make decisions on behalf of the ward. The basic requirement for the appointment of a guardian is that the person for whom a guardian is to be appointed must have a legally recognized disability which either partially or completely impairs the decision-making capacity. Under the Probate Laws of Illinois (Ch. 110 1/2. Article 11 a, et. seq.) a person may be adjudicated a "disabled adult" (legal not clinical terminology) if:

Because of mental deterioration or physical incapacity, he is not fully able to manage his person or estate; or
He is mentally ill or developmentally disabled and. because of his mental illness or developmental disability, is not fully able to manage his person or estate: or
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.

However, the real test as to the need for a guardian, is based on clear and convincing evidence:

"If BECAUSE of his DISABILITY he LACKS sufficient UNDERSTANDING or CAPACITY to MAKE or COMMUNICATE RESPONSIBLE DECISIONS concerning his person (estate or both)..." (11a.3)

This evidence of need for guardianship may be brought to the court's attention by any "reputable person", or by the "alleged disabled person himself." In cases where the court is fully advised and no other person is seeking guardianship on behalf of the alleged disabled person, the court may on its own motion appoint a guardian.
Guardianship is considered to be the most intrusive legal intervention which can be imposed on a person with a disability which renders him/her unable to make responsible decisions. Therefore, its purpose and scope must be very individualized and based on specific functional incapacities. Guardianship should be looked upon as a last resort
No law exists in Illinois that requires guardianship, nor should one conclude that guardianship is automatic by virtue of having a recognized disability. Further, while parents of minor children (below age 18 years) are presumed by law to be "guardians", such presumption no longer exists when a dependent reaches eighteen years of age. All adults, regardless of clinical incapacity are presumed to be capable of making all decisions on their own behalf. Parents, service providers, or concerned friends have no legal authority to act on behalf of a person with a disability which, in fact, impairs his/her decision-making abilities, without due process of law. Therefore, the purpose and value of guardianship must be carefully assessed on an individual basis.

What is the Need for and Purpose of Guardianship?

"Guardianship shall be utilized only as is necessary to promote the well-being of a disabled person, 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." (11A-3 [b])
In essence, the test for determining the need for guardianship focuses on the ability of the person to make decisions and properly communicate decisions once made. Making incorrect or ill-advised decisions on a periodic basis is not the test. Rather, it is an inability to engage in decision-making in the first place which is important. A practical set of questions that may be addressed are as follows:

Does the person understand that a particular decision needs to be made?
Does the person understand the options available in the decision-making process?
Does the person understand the consequences of each option?
Is the person able to properly inform appropriate panics once the decision has been made?

The fact that a person has a mental disability does not automatically dictate a need for guardianship. Those with relatively mild or moderate mental impairments may be able to make effective decisions with mere advice and assistance of concerned people. In this instance a guardian would not be appointed.
Therefore, in all cases, a practical consideration of the person's ability to undertake the decision-making function during adulthood is the key determining factor.

How does Guardianship of Person Differ from Guardianship of Estate?

The assistance provided by a guardian is divided under the law into two types: financial and personal. A guardian responsible for financial matters is called "guardian of the estate," and a guardian responsible for personal matters is appropriately called "guardian of the person."
The guardian of the estate is given the responsibility of managing the money, properly, and other assets owned by the disabled person. The guardian of the estate may use the disabled person's assets only for the care and needs of the disabled person, and must always use reasonable care in managing and spending the funds of the disabled person. (It is often said that a guardian of the estate must use the same amount of care and frugality with the disabled person's assets as he would were they his own).
The guardian of the person has all the remaining powers and duties with respect to the disabled person' s care and general welfare. In addition, if the ward has dependents, the guardian of the person may also be given custody over these individuals. Decisions about habilitation and treatment services, medical care, residential admissions or discharge, food, clothing, education, and all other personal matters may be the responsibility of the guardian of the person. If the guardian of the person needs to place the disabled person in a residential program, specific permission must be granted by the court which appoints the guardian.
Thus, the fundamental role of the guardian of the person is to protect the overall well-being of the person with a disability. Under Illinois law, a guardian of the person may also be charged with the ultimate responsibility for protecting the best interests of the disabled person and assuring that the disabled person is not harmed or neglected.
While guardianship of the person and of the estate are two distinct roles, the law does permit one person or organization to fulfill both functions. And in the great majority of cases, it would seem very wise to have a single person or entity be fully responsible for both personal as well as financial guardianship services.
All guardians are required to report to the court which appointed them guardian. However, guardians of the estate generally have substantially more detailed reporting obligations. The court may require very frequent statements from the guardian as to the manner in which he is acting, the status of the property being managed, and the purposes and amounts of expenditures made from the disabled person's funds. In some cases, the court may require advance approval for expenditures. Also, obtaining an appointment as guardian of the estate can, as a practical matter, often be substantially more expensive. A guardian of the estate may be required to purchase a "bond" which constitutes a type of insurance covering mistakes or misdeeds of the guardian in the management and expenditure of the disabled person's assets. The charge for the bond is payable by the estate.
Given these significantly greater reporting requirements and costs for guardianship of estate, careful thought must be given to the need of having a guardian of the estate. Unless the disabled person has significant assets or funds (which is not often true), a guardian of the estate is not necessary. In most instances, families of the disabled person simply seek appointment as guardian of the person.
In the event that the disabled person should later obtain substantial assets, it is a relatively simple matter to then add additional powers covering guardianship of the estate.

Is "Conservatorship" Different from Guardianship?

The terms are used interchangeably. Those families who obtained court approved powers over their relatives with disabilities prior to 1979 were said to be the "conservator" of the disabled person. In essence the term "conservator" is exactly the same as "guardian"; however, the word "conservator" is no longer used. Those who were appointed conservators need not reapply to the courts. The powers of conservators continue in full regardless of the recent changes in terminology.

Limited Guardianship?

Under prior laws, courts hearing guardianship cases were given few options in deciding the extent of guardianship to provide. They were permitted either to find the disabled person completely incompetent and appoint a full plenary guardian, or to dismiss the case and leave the disabled person without any legally recognized decision-maker.
While plenary guardianship does have particular advantages and continues to be very useful for the individual with severe mental retardation, it is clear that individuals with milder disabilities may not need a substitute decision-maker for all aspects of their care. Many individuals with disabilities need only limited assistance in managing their personal and financial affairs; they are quite capable, with less formal advice and assistance, of making many decisions on their own.
In order to fill the gap left by the previous set of laws, an amendment to the guardianship statute enacted in 1979 permits the appointment of what are termed "limited guardians" when circumstances warrant. The court order which creates the guardianship may now be tailored to fit the precise needs of each individual with a disability. Under limited guardianship, the individual may retain decision-making responsibilities which he is capable of exercising, yet have guardianship assistance with respect to matters in which there is a need for a substitute decision-maker.
It should be noted that limited guardianship is available for both guardianship of the person and of the estate.
In assessing the propriety of limited guardianship, the family should carefully consider the disabled person's abilities and disabilities. Since limited guardianship is a very flexible mechanism, the range of authority given to the limited guardian can be individually tailored to match the needs of the disabled person in question. While certainly not an exhaustive list, a few of the more important subjects to be considered for purposes of limited guardianship are as follows:

Residential placement; medical and psychiatric treatment: placement in educational or vocational programs: access to professional records and professional consultations about the disabled person; the power to cancel or negate contracts entered into, or purchases made by, the disabled person which are not in his best interest

Temporary Guardianship

A special form of guardianship is Temporary Guardianship (or Emergency Guardianship). The purpose of temporary guardianship is to allow the court to appoint a guardian to deal with an urgent situation in the life of the alleged disabled person. When circumstances have arisen that threaten harm to a person lacking the capacity to act on his or her own behalf, a court may find that "for the welfare and protection" a temporary guardian of person, estate or both is necessary. This type of appointment is generally reserved for life-threatening situations where the individual may incur permanent or irreversible harm, exploitation, abuse, or lack stable residential placement.
Temporary guardianship should not be used as a procedural shortcut when no real emergency actually threatens the person with disabilities. It should not be a convenience for the medical profession who may choose not to act in emergency situations in which they would normally not be held negligent for a good faith judgement call. Temporary estate guardianship should be used exclusively to "preserve, protect and discover assets" or make emergency provisions to pay for necessities without major depletions or sale of estate assets until a permanent hearing.

Who May Serve as Guardian?

To be a guardian in ILLINOIS, an individual must be (11a-5):

A parent, family member, friend or volunteer who is:
1. A reputable adult of at least eighteen years of age,
2. Of "sound mind" (mentally competent and not in need of guardianship),
3. Has not been adjudicated a disabled adult; (does not have a court-appointed guardian),
4. Has not been convicted of a felony,
5. And, the court finds capable of providing an active and suitable program of guardianship.
Any public agency (slate or county guardian's office) or not-for-profit corporation (e.g., PACT. Inc.) found capable by the court of providing an active and suitable program of guardianship for the disabled adult, taking into consideration the nature of such person's disability and the nature of such organization's services. However, the court shall not appoint as guardian an agency which is directly providing residential services to the ward.
Any corporation qualified to accept and execute trusts in ILLINOIS may be appointed guardian of the estate of a disabled person.

Modification or Discharge of Guardian

Any person, agency, or bank found qualified and appointed by a court as guardian may be removed by that court for good cause shown. Generally, removal is a result of "willful and wanton" negligence or failure to perform the duties and responsibilities as guardian. As long as a guardian conscientiously performs his/her duties and acts on behalf of his/her ward in the same manner that "any other reasonable and prudent person" would act, the expectations of the court will be met.
The ward, you as guardian, or any person who believes evidence exists to support the modification or termination of the guardianship may notify the court and request a review of a guardianship order.
Most modifications seek to alter the scope of a guardian's authority, either increasing or decreasing power based on the ward's needs.
A change of guardian may occur for several reasons. Generally, a guardian will continue until he/she is granted specific permission to resign and a successor guardian is appointed. Such reasons for change may include:

The ward no longer needs a guardian;
The guardian is no longer willing or able to serve;
The guardian fails to faithfully discharge his/her duties;
The guardian is convicted of a felony and is no longer eligible to serve;
The guardian is found by others to no longer take an active interest in the ward;
The guardian fails to report as directed by the court;
The ward or guardian dies;
The guardian moves out of state.

Individuals who assume guardianship and find that because of circumstances beyond their control, they must resign, should contact the court by letter. The ward's need for guardianship is not diminished by the guardian's inability to continue in his role.

What are the Basic Duties of a Guardian?

In general, a guardian of person's duties are to act as a substitute decision-maker (not a substitute parent figure), and seek to ensure the best possible care, treatment, and program/services, in the least restrictive manner, for the ward. Specific duties are dependent upon the needs of the ward and the scope of the guardianship order. However, the following are duties and responsibilities inherent in all guardianship appointments:

Be sufficiently knowledgeable of the WARD and his/her needs to make responsible informed decisions on his/her behalf.
Visit the ward on a regular basis, both in residential and day-mode training settings (Monthly contact is minimally recommended).
Be available by phone or in person to respond to requests for consent in regard to routine care or emergency issues.
Become actively involved as a contributing team member, and legal advocate in ongoing and changing programs and services provided the ward.
Maintain written records outlining visitations to and actions taken on behalf of the ward and submit status reports to the court at its direction.
Protect the rights of the ward and ensure adherence to confidentiality standards.
View the duties and responsibilities of guardianship as a serious commitment which requires time and personal attention.

Guardian's Duty to Report

As the court directs, the guardian of the person must file a written report which should briefly state:

The current mental, physical and social conditions of the ward;
The ward's present living arrangement, a description, address and length of stay at each residence during the reporting period;
A summary of medical, educational, vocational, and professional services provided the ward;
A listing of the guardian's visits and activities on behalf of the ward;
The guardian's recommendations for the continued need for guardianship or modification to accommodate the ward's current needs and capacities;
Any other information which the court may request or that the guardian deems relevant.

Currently, court practice requires reports at intervals stipulated by the court itself, It is recommended that the guardian maintain an ongoing record-keeping system and submit a report at least annually. An updated court record and ongoing accountability will allow for better communication of the ward's status. Further, should the guardian seek direction of the court regarding controversial problems or desire clarification as to authority on specific issues, the court will be better informed as to the history leading up to the request.

What Personal Liability Might a Guardian Incur?

Upon being appointed by a court, a guardian must sign an OATH OF OFFICE and NON-SURETY BOND if guardian of person or SURETY BOND as guardian of estate.
The OATH OF OFFICE states that as guardian of person (or estate or both) you will "faithfully discharge the duties" of your office. On your signature a Non-Surety Bond (a form of bond which requires no cash) binds you to the People of Illinois to live up to your oath. A Non-Surety Bond is usually in the amount of $1,000.00. If you fail to faithfully discharge your court-ordered duties as guardian, the court can relieve you of those duties and may assess a fine in the amount of the Non-Surety Bond ($1,000.00).

NOTE: Those persons assuming estate guardianship responsibilities must file a Surety Bond by paying a bonding company for a cash bond worth one and one-half times the value of the assets in the estate. This annual premium may be paid by the estate itself.

This process is necessary to protect the ward and if applicable his assets, from a guardian who may not faithfully discharge his/her duties in a reasonable and prudent manner.
As a rule, guardians are not considered negligent in their duties if they have exercised the degree of care which a reasonable and prudent person would take in the same or similar situation. Unless a guardian is guilty of deliberate "willful and wanton" disregard for the safety and welfare of his ward, it is unlikely that personal liability would be incurred. However, a guardian has been found to be legally liable for the wrongdoing of his ward when the guardian either directed or approved in advance the actions of the ward which led to the wrongdoing.
In practice, a guardian should always be cognizant of the degree of risk he/she may take where the ward is involved. Taking irresponsible risk, which may result in actions which prove not to be in the best interest in the ward, may result in personal liability. As a rule of thumb, a guardian should apply a measure substantially above the level of risk he/she would take for themselves. A guardian is accountable to the court that appointed him/her. If a guardian closely observes the boundaries of his court-ordered authority and uses sound judgement in his decision-making role, concern for personal liability will be greatly minimized.
Finally, a guardian is not liable for the illegal acts of his ward. Regardless of being adjudicated as a disabled adult, the ward is personally responsible for wrongful actions which may result in civil or criminal charges. Guardianship does not protect a disabled person from prosecution. A guardian's role would be to ensure that the ward who faces prosecution is provided legal representation.

What Financial Liability Might a Guardian Incur?

Generally a guardian of person is not liable for debts of his disabled ward. A guardian is not required to use his own personal funds to pay for the financial needs of their ward.
However, a guardian will become financially and legally liable if he/she promises to personally pay for goods or services for the ward as "guarantor" instead of guardian. Also, if the guardian knowingly permits the ward to purchase goods or services without the assets to do so, the guardian may be liable for payment.
To avoid financial liability never sign as guarantor of payment and keep in close contact with your ward's estate guardian (if applicable) or representative payee and become knowledgeable about the wards income and ongoing financial and personal allowance needs.