Guardianships – Starting The Proceedings – Part 5

By Cary A. Lind

Powers Of Attorney And Guardianships

Article 11a specifically states (with some exceptions set out in §§17 and 18) that no guardian has the power to act with regard to any matter which is covered by a valid power of attorney. That restriction applies to the guardian of the person and guardian of the estate. Considering those provisions, when there are powers of attorney outstanding, what is left for a guardian to do? What happens when a power of attorney is being misused or collides with a guardianship? The answer is found in 755 ILCS 45/2-10.

§2-10 is entitled “Agency-Court Relationship.” The section allows an interested party to petition the court when the principal lacks the capacity to control or revoke the agency and where the court finds that the agent is not acting for the benefit of the principal in accordance with the terms of the agency or that the agent’s action or inaction has caused or threatens substantial harm to the principal’s person or property in a manner not authorized or intended by the principal. The section then allows the court to order a guardian of the person or estate to exercise any powers of the principal under the agency, including the power to revoke the agency. The court may also act without appointment of a guardian as the court deems necessary to provide for the best interests of the principal. Alternatively, if an agency requires interpretation, the court can construe the agency and instruct the agent but not amend the agency. In sum, a mechanism is set up to bring the interpretation, validity, use, lack of use, or abuse of a power of attorney before the Probate court in the context of a guardianship proceeding.

In the usual case, a contested guardianship hearing will involve one or both of two issues: (1) Is the respondent disabled under the Probate Act? (2) If so, who should be appointed guardian? When a power of attorney is brought into question as noted above, the inquiry becomes a three-step process. A new first step is inserted in which the court must determine whether any action needs to taken with regard to any existing power of attorney. Only if the petitioner gets past that first step does the court reach the other two issues.

Many of the applications of §2-10 are obvious, such as in cases of theft, interference with existing inter vivos or testamentary plans, or failure to follow the intended use of a power of attorney. Some are less obvious. For example, two children each battle for control of a parent’s care or asset management, and the parent is caught in the middle. Because of diminished capacity, emotional weakness, or other reasons, the parent will not say “no” to either child and may even sign a series of powers of attorney alternating between the children. At some point, the “disadvantaged” child starts a guardianship proceeding and seeks to void the outstanding powers of attorney under §2-10. In case of a progressive disease such as Alzheimer’s, the petitioner may allege that the respondent also lacked capacity at the time the powers of attorney were signed. I was involved in one case where Judge Dowdle ordered a combined hearing on both issues of capacity, at the time of execution of the powers of attorney and at the time of hearing on the Petition for Guardianship, deferring any action on the appointment of a guardian pending the result of the first hearing. That to me was a proper mechanism to use. If the respondent is competent, then there should be no guardianship in the first place. If the respondent is now not competent but was competent at the time of execution of the powers of attorney, then there may be little if anything for a guardian to do. By first deciding competency, the procedure also avoids requiring the agent under a power of attorney to counter-petition to be the guardian of his or her principal who the agent may believe is still competent.

Capacity To Execute Powers Of Attorney

The statutes do not define the standard of capacity necessary to validly execute a power of attorney, and no reported Illinois cases to date have addressed the issue. In discussions with other attorneys, I have encountered a full range of opinions. At one extreme are those who believe the standard of capacity should be the same as that necessary to execute a will, trust, or deed, since the agent usually has full powers over the care of the principal and over the principal’s assets. At the other extreme are those who believe as I do that the standard is very low, and that all that is necessary is to know that you are turning over full decision-making authority to someone you know and trust to act for you. The “final answer” will have to await further developments.

Practical Suggestion

If you represent a petitioner who is attacking powers of attorney or is pursuing a contested guardianship and if you “lose” the case, your client will have to pay all of his or her own fees and expenses, which may be substantial by the time expert and guardian ad litem fees are included. The client and perhaps you, however, could also be liable for the respondent’s fees and costs under Supreme Court Rule 137. Therefore:

  • Warn your client in advance of what can happen and the potential financial exposure.
  • Be careful as in any other litigation to do an adequate investigation in advance apart from what the client tells you.


There is much more that can be discussed about beginning guardianship proceedings, but with these procedures and considerations in mind, you should be able to get your client appointed and avoid many of the potential pitfalls. After the appointment is made, the harder work of administration of the estate begins. Administration of a disabled ward’s estate is different in many ways from administration of a decedent’s estate. But that, as “they” say, is a story for another day.

© 2001 by Cary A. Lind, all rights reserved