Overview of Disabled Adult Guardianships
Disabled adult guardianship can become necessary when an adult becomes incapacitated to the degree that he or she is unable to manage his or her financial or personal affairs. In these cases a guardianship proceeding may be instituted in the probate court to appoint a guardian to provide needed assistance to the incapacitated person.
What you should know up-front is that guardianship can be costly and complicated. In many cases, alternatives to guardianship can and should be used. Guardianship should be considered a last resort, a mechanism by which a person’s legal rights are taken away for a sound and necessary purpose. It should never be used in a retaliatory manner or as a convenience for a health care provider or a family member.
Different Types of Guardianship
There are many kinds of guardianships including disabled person guardianship, plenary guardianship, and adult guardianship. In addition to guardianship of the person there is guardianship of the estate. Guardianship of the person relates to personal care and involves decisions and activities regarding medical treatment, residential placement, social services and other needs. Guardianship of the estate relates to an inability to make or communicate responsible decisions regarding the management of financial matters. The estate guardian will, under court supervision, make decisions about the ward’s funds and the safeguarding of the ward’s income and assets.
The Legal Process
For a guardian to be appointed, a petition must be filed in the probate court by an “interested person.” The petition includes basic information, such as the name, date of birth and address of the person alleged to be in need of guardianship. A report must also be filed which includes a physician’s description of the person’s physical and mental capacity along with relevant evaluations which would enable the judge to determine the type of guardianship needed.
Disabled adult guardianship hearings are set within 30 days of a petition being filed with the court. The alleged disabled person, or respondent, must be served with summons and a copy of the petition. The respondent may be represented by a lawyer and has a right to a jury trial where he/she may present evidence and cross-examine witnesses. Where appropriate, the court will appoint an attorney or lay person to serve as the guardian ad litem. The guardian ad litem acts as the “eyes and ears” of the court, and advocates for the best interest of the respondent. Before the hearing, the guardian ad litem interviews the respondent, informs him/her of his/her rights, and investigates the appropriateness of guardianship. If the alleged disabled person opposes the opinions of the guardian ad litem, or disputes the need for guardianship, the court may appoint an attorney to represent the respondent.
At the hearing, evidence about the respondent’s health, mental faculties, finances, housing and life style is presented. The guardian ad litem reports to the court as to the condition of the respondent and makes recommendations regarding the type of disabled adult guardianship needed. The court reviews all the information presented and either enters a limited or plenary guardianship order or finds that no guardianship is warranted.
An appointed guardian is responsible for overseeing a program intended to maximize the disabled person’s (“ward’s) self-reliance, independence and general quality of life. A person guardian also may be required to submit an annual report to the court concerning the services provided to the ward and the status of the ward’s personal care. Estate guardians must file inventories of the ward’s assets and periodic accounting of estate receipts and disbursements. All estate expenditures are subject to court review, and the guardian may be held accountable for estate assets improperly managed.
If a change in guardianship seems indicated at any time, or if the annual report recommends that guardianship be changed or revoked entirely, a petition for modification or termination of guardianship can be filed. Based on this, the judge may then terminate the guardianship or modify the guardian’s duties. A court may also appoint a successor guardian if a guardian is unwilling or unable to perform his duties.
Any party filing a petition for a disabled adult guardianship usually is required to pay fees for filing, sheriff’s fees for the service of summons on the respondent, and attorney’s fees. Although it is not required, petitioners are generally represented by attorneys, particularly in contested guardianship cases. In some cases, the petitioner may pay fees for the services of the guardian ad litem or the physician who prepares the medical report. If the respondent has funds, these may be used to pay costs and fees.
Disabled Adult and a Supplemental Special Needs Trust
If you have a child or someone else in your life who needs, or will need, more than ordinary care as an adult – consider establishing a special needs trust. Properly set-up, a special needs trust can help to ensure high quality of life for its beneficiary without putting medical and other benefits the individual may qualify for at risk.
If you live in the Chicago or Lake County area, and need an experienced Guardianship attorney, please Contact Us.
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