By Jessica Jurevis, Esq., Associate Attorney at DDV Law, Ltd.
The Clients
Every day, people become unable to make their own decisions or manage their affairs for several reasons (old age, illness, injury, etc.). Without proper estate planning documents in place, families and friends must petition the court to appoint a guardian for their loved one.
A guardian of the estate manages a disabled person’s financial affairs while a guardian of the person manages health care decisions and daily life activities. The same person can serve as guardian of the estate and person or two individuals can share the roles. A guardian can be an individual, a public agency, or a non-profit organization. A guardian’s decision-making authority can be all-encompassing (plenary) or it can be limited (reserving some rights in the principal).
The Legal Background
Being appointed a guardian – in any capacity – is a significant undertaking and should never be taken lightly. Over the years, the Illinois legislature and courts have provided guidelines, which attorneys and families of a disabled person must consider when nominating either an individual or organization as guardian of a disabled person.
First and foremost, we consider the governing law, which, in the world of guardianship, is the Probate Act. The Probate Act sets forth factors that serve as a bench marker for who is qualified to act as guardian. 755 ILCS 5/11a-5. According to the Act, a proposed guardian must be:
- Capable of providing an active and suitable program of guardianship for the person with a disability;
- Eighteen years of age;
- A resident of the United States;
- Not of unsound mind;
- Not an adjudged person with a disability as defined in [the Probate Act]; and
- Not been convicted of a felony.
However, the Probate Act also provides that the selection of guardian “shall be in the discretion of the court”, giving consideration to the preference of the disabled person as to a guardian as well as the proposed guardian’s qualifications. 755 ILCS 5/11a-12. This means that even if someone satisfies the criteria above, the court may still decide not to appoint that person as guardian.
But how can this be?
The answer is the standard against which virtually all guardianship matters are tested. “The paramount concern in the selection of the guardian is the best interest and well-bring of the person with a disability.” Id. This standard will take priority even over the disabled person’s own preference of guardian. In a guardianship proceeding, the Ward, or person with a disability, loses at least partial, and often complete, control of their right to manage their affairs as the guardian will now act for them. With such high stakes, it is the court’s duty to ensure all precautions are taken to protect and preserve the best interests and well-being of the person with a disability.
Beyond the Probate Act, courts have supplemented what to the court should consider when appointing a guardian. The court in In re Estate of Vivic, 79 Ill. App 3d 383, 385 (Ill. App. Ct. 1979) considered the following factors:
- Degree of relationship between the disabled person and the proposed guardian;
- Prior to being determined disabled by the court, any conduct by the disabled person which manifests trust or confidence in the proposed guardian;
- Prior actions by the proposed guardian which indicate concern for the well-being of the disabled person.
In addition to these factors, the court in In re Estate of McHenry, 2016 IL App (3d) 140913, considered:
- Recommendations of persons with kinship of familial ties to the disabled person;
- The ability of the proposed guardian to manage the disabled person’s estate (reemphasizing the proposed guardian’s qualifications); and
- The extent to which the proposed guardian is committed to discharging any responsibilities which might conflict with his or her duties as guardian. Id.
Connecting Clients and the Law: A Practical Application
At the end of the day, a “one size fits all” approach simply does not work. Like many legal concepts, the complex nature of guardianship proceedings makes it impossible to have any clear-cut rule as to who can and cannot be appointed a guardian.
After some reflection, the factors considered make sense. A guardian should be competent and functioning adult. A guardian should be qualified in both skillset and demeanor to manage either or both a disabled person’s financial and health care matters. A guardian should be willing and able to act, to get involved, and to foster a relationship with the disabled person.
However, always be mindful of the following standard, that “[t]he paramount concern in the selection of the guardian is the best interest and well-bring of the person with a disability.” 755 ILCS 5-11a-12.
If you believe guardianship is the best option for a loved one, consider the factors and standards presented here and schedule an appointment to meet with an elder law attorney to discuss your options and whether guardianship is the best strategy.
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