Generally guardianships result when adult persons become incapable of managing their own health or financial decisions and no durable power of attorney exists. In a guardianship, the court appoints a guardian to manage that person's financial and health affairs and make all decisions. Any decisions made by the guardian must be approved by the court. Some authorities are granted in the statutes and some require special court involvement and approvals. It is very important in estate planning to have a power of attorney for healthcare and one for property so that a person can designate a loved one or trusted friend as an agent to make decisions in the event of disability. It is important to note, however, if an agent is not acting when needed or is not acting for the benefit of the principal, it may be necessary to have the court revoke the powers of attorney and appoint a guardian.
When guardianship is necessary and indicated, Peggy A. Pratscher can assist with all court filings and legal proceedings. In the Illinois Probate Act governing Guardians for Disabled Adults, the Act provides for the adjudication (determination) of disability, the appointment of a guardian of the person and/or estate, and court oversight of asset management and personal decisions.
The proceedings begin with a petition for guardianship (non emergency) filed by an interested person, often a family member, accompanied by a report of disability by a physician. The disabled person is entitled by “due process” to be served with notice at least 14 days prior to a scheduled hearing and to a jury trial or hearing on the issue of disability within 30 days of the filing of the petition. The court may appoint a guardian ad litem to represents the best interests of the alleged disabled person, conduct an investigation, report to the court the findings of such an investigation and make a recommendation either for or against the guardianship.
Upon adjudication of disability, the appointed guardian is required to file a report with the court on an annual basis concerning the person and estate of the ward. Court approval is required for residential placement of the ward or transfers to different levels of care, to create and fund special needs trusts, to contract with brokers for sale of property and subsequent approval of sales contracts, and the court reviews all receipts and expenditures in the ward’s estate.
There are advantages to guardianship. The most important includes court oversight of the person and estate, a ready forum to resolve disputes, and procedural safeguards to the determination of disability. Family members often view the court's supervision as welcome and it may help to mitigate allegations against the guardian and provide a level of protection for actions undertaken by the guardian. Guardianship is frequently implemented to prevent exploitation and abuse or sometimes to stop and/or undue exploitation and abuse that may have resulted under agency or the lack of agency designation. Unless waived by the court for good reason, the guardian is required to post a bond to protect the ward's assets.
Disadvantages of guardianship include the court costs, legal fees, probate bond premiums, and the requirement of providing annual reports of the person and accountings of the estate to the court. Depending on the circumstances surrounding the implementation of the guardianship, this reporting may be viewed by some as an advantage and by others as a disadvantage. Probate guardianship proceedings are also public to a certain extent, meaning anyone can sit in the courtroom during most guardianship proceedings and listen. All medical records and physician reports are “sealed” by the court and can only be released with a court order from the Judge for good reason and to specific persons that the judge deems appropriate to receive such information. The rest of the court records are part of the case which, unless the person is a minor, are technically publically available but they cannot be requested as a FOIA (freedom of information act) request.