What is guardianship?
Guardianship is the appointment by the court for a surrogate/substitute decision maker for a person who is over the age of 18 and is unable to make decisions due to some level of incapacity. When a person reaches the age of 18 they receive all of the adult legal rights. If they are unable to understand these rights and exercise them due to lack of decisional capacity, a judge can appoint a guardian to protect that individual and make legal decisions for them.
How long does the guardianship process take?
The process can take up to 2-3 months depending on the court calendar.
When should I start the process of seeking guardianship?
We recommend that you start the process 2-3 months before you need the guardianship. For special needs children turning 18, you would start the process 2-3 months prior to their 18th birthday. Seeking an attorney is essential.
As you seek guardianship for a person, there are two major types of guardianship to consider. The Petitioner(s) is required to seek the least restrictive type of guardianship based on the needs of the protected person.
• Plenary (Full) Guardianship: This is the most restrictive form of guardianship. All adult rights are removed from the protected person and transferred to the guardian to exercise.
• Limited Guardianship: This is the less restrictive form of guardianship. With this type of guardianship the guardian is only able to exercise rights for the protected person in the areas specified by the court.
There are five (5) major types of limited guardianship. They include medical, financial, education, residential and habilitation including daily support services.
There are a number of other guardianship types including temporary but one would want to secure an attorney for deciding which one is most appropriate.
Can a guardianship be terminated?
Yes, a guardianship can be terminated when the protected person regains decisional capacity and competency. Of course, the court would be involved and a hearing would be held to review the case.
Can the guardianship be amended to change a guardian or the type of guardianship?
Yes, a guardianship can be amended as needed depending on the needs of the protected person. The court would need to be petitioned to change the scope of guardianship required.
What kind of ongoing records do I need to provide to the court?
Guardians are required to file an Annual Report on the Ward. Estate guardians must file an inventory within 60 days of being appointed and then an Annual Accounting. All estate guardians shall file an annual accounting. See Guardian Manual for more information.
How many guardians can a person have?
In Illinois, one guardian is typical. There are circumstances where co-guardians can be named depending on the needs of the protected person.
Is there any financial assistance or government agency that can help me with getting a guardianship?
Generally, there is very little assistance. One can call the local Land of Lincoln and/or Area Agency on Aging for possible referrals. The Illinois Office of State Guardian cannot petition for guardianship but can be named pursuant to Illinois law. There are Public Guardians appointed by the governor in most counties but the Public Guardian (PG) cannot petition. The PG can be named guardian by the court pursuant to Illinois law for estate cases that have over $25,000 in assets.
I have a daughter with special needs who is 16 years old and is having difficulty getting help with her classes. Her IEP states she needs help with mathematics and English but nothing seems to be happening. I am not her legal guardian. What should I do?
If you are able to go online and want to review what the Guardian Manual has regarding special education, please go to www.illinoisguardianship.org and click on Guardian Manual. Pages 27-31 provides a general overview of the education plan (IEP) and what options you may have. Also, visit the Illinois Department of Education web site at http://isbe.net/spec-ed/html/parentright.htm. This site contains a very thorough review of an IEP and should be very helpful.
Is there a requirement for guardianship training for newly appointed guardians in Illinois?
Yes, HB2665 State Guardian Training Program, Public Act 100-0483, took effect as law on September 8, 2018. The State Guardian had a year to implement the law which calls for guardian training except for those who are employees of the Office of State Guardian, public guardians, attorneys currently authorized to practice law, corporate fiduciaries, and persons certified by the Center for Guardianship Certification (CGC). The guardianship training for which a person will receive a certificate to file with the court, can be found on the following link. https://onenet.illinois.gov/page.aspx?item=115288&review=1