Guardianships – Starting The Proceedings – Part 1

As people continue to live longer, more guardianships become necessary, even in the wake of a dramatic increase in the use of powers of attorney and trusts. At some point, almost every attorney will get a call from a client with questions about what to do for an older adult whose mental capacity is fading, sometimes very gradually. This series of articles will explore some of the issues which must be addressed at the beginning of guardianship proceedings. Article 11a of the Probate Act deals specifically with guardians for disabled adults. Section references will be to that Article unless otherwise indicated.

Is the person disabled?

The first question is whether the alleged disabled person (“the respondent”) is “disabled” as defined by the statute. §11a-2 defines a disabled person as “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.” The respondent may behave foolishly, may allow himself or herself to be taken advantage of by a new “friend,” relative, or anyone else, but still may not be “disabled” under the Act. If the respondent does not fall within the definition of §2, then nothing more can be done by means of a guardianship. If proceedings are brought and then dismissed for failure to prove the disability, the petitioner may be responsible for all fees and costs in connection with the ill-fated proceedings.

Even if a person is disabled within the definition of the Act, the next question is “to what extent?” It may still be possible to avoid the guardianship by means of powers of attorney (more in subsequent articles). Assuming no other alternative except guardianship is available, we then move on to the next question.

Who will be the guardian?

Did the respondent while competent ever designate in writing who would serve as guardian in the event of mental disability? Such designation may be found in a Power of Attorney for Health Care or separate designation of guardian. §6 of the Act still requires the court to make a finding that the appointment of the designated person will serve the best interest and welfare of the ward. If that is true and the person is otherwise qualified, then the designated person will be appointed.

With or without any designation, §5 sets forth the qualifications to act as a guardian. The guardian may be an individual of 18 years or older who is of sound mind and who has never been convicted of a felony. Typically, this would be a family member, relative, or friend. Positive reasons for having such an individual serve as guardian are a closer relationship with the ward, knowledge of the ward’s past history, likes, dislikes, etc., and lower cost. Typical drawbacks can be difficulty in devoting time to the duties that the guardian must carry out on a continuing basis, more susceptibility to interference by other family members, and in some cases, outright battles over who will act as guardian and who will control the ward’s physical and financial circumstances. §5 also allows for private organizations to act as guardian. There are a number of such organizations which have been approved by the court and will undertake such representation.

If there is no one willing and able to assume the duties and powers of guardian, the Public Guardian for the county in which the ward resides is authorized to act. In my experience, I have found that the office of the Public Guardian of Cook County does a competent to excellent job serving as guardian. They provide a number of different levels of services with different personnel at each level, from attorneys to handle the court proceedings, to bookkeepers to handle payment of bills, and to social service workers to monitor the condition of the ward and make periodic home or nursing home visits as necessary. The attorney fees charged by the Public Guardian’s Office will almost certainly be less than that of a private attorney, although fees charged by some of the other office personnel somewhat offset the savings. In general, however, the office works well and does a good job at what it does. If the assets of the Estate are small or none, then the Public Guardian will decline to act, and the State Guardian will act instead.

Why appoint a guardian?

In some circumstances, this may be the first question that needs to be asked. A guardian does not have the power without court approval to place the ward in a residential facility. (See §14-1) Similarly, a guardian is not entitled to consent to the administration of psychotropic drugs, electro-convulsive shock therapy, or other serious medical procedures without obtaining approval in advance from the court.

One important reason to institute guardianship may be to stop in its tracks any ongoing financial or physical abuse of the ward. The court can when presented with appropriate evidence freeze assets or take other action to protect the life, health, and property of the ward. If speed is also required, that can be accomplished through appointment of a temporary guardian.

Practical Tips:

1. You should advise the client at the first opportunity that acting as guardian can require a significant investment in time and initial outlay of fees and costs. Especially during the early stages or if the ward needs to be institutionalized, the experience may be emotionally and even physically draining. If the client is not willing to make those efforts, he or she should consider having someone else serve.

2. You should also advise the client at the earliest opportunity to keep a time log of all time spent on or in connection with the respondent, all expenses incurred, and all automobile usage. The client should also reconstruct those same records for prior periods to the greatest extent possible. The client may later choose not to ask for fees or reimbursement, but without contemporaneous records, the opportunity to do so at a later date may be lost.