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Guardianships

This information discusses the role of a court-appointed guardian either for a minor, that is a person under age 18, or for an adult with a mental disability. All of the information given on this tape applies to Illinois law only. If the person who may need a guardian is a resident of a state other than Illinois, we suggest you contact a bar association in that state. A guardian is appointed for the purpose of protecting a person or his estate--that is, a person's physical well-being, his property, or both. The court may appoint a guardian when an adult is found to be unable to manage his personal or business affairs because of mental disability. To prove that a person has become disabled such that a guardian is needed, the person petitioning the court for a guardianship must explain how the disability prevents the person in question from making informed decisions concerning living arrangements and medical care (that is, decisions regarding his or her "person") or informed business and property decisions (that is, decisions regarding his or her "estate"). The petition for guardianship is usually accompanied by a certificate explaining the extent of the disability, signed by a physician who has examined the disabled adult, otherwise the court can order a medical evaluation. The alleged disabled person for whom a guardian is sought must be specially informed that the petition for guardianship has been filed. As part of the process of protecting that person, the court will appoint, unless the appointment is waived, an attorney to interview that person and report to the court on the extent of the disability.

Guardianship proceedings may be started by a relative or friend. In this case, the person for whom a guardian is felt necessary must be proved to be incapacitated--that is, unable to manage his or her own affairs. Any elderly person who believes he or she is being unfairly pressured into guardianship should immediately get in touch with a lawyer.

Guardianship can be a temporary arrangement--that is, a person may be seriously injured in an accident and need someone to care for his or her affairs until recovery. Or a guardianship can be a permanent arrangement--as in the case of someone of advanced age who cannot manage the family business after other family members have died.

Once appointed, the guardian of the estate has the duty of managing the person's property and disbursing money only for the benefit of the disabled person as long as the disability lasts. The court decides the amount of money the guardian will be paid for services and sets limits on the guardian's duties and powers according to the needs of the person for whom the guardian is appointed. The guardian of the estate will, subject to court order, make arrangements for the person's care, support and health needs. The guardian must periodically report to the court how the incapacitated person is doing and must also periodically account to the court how the property of the disabled person is being handled. The guardian may be a relative, a friend, a non-profit corporation, or a financial institution, such as a bank. The guardian's duties and authority are strictly governed by the laws of Illinois and orders of the court. The guardian may only invest property of the disabled adult in a limited list of permitted investments.

A guardian may also be appointed by a court to supervise a minor and his or her property when neither parent is able to do so, or if the minor has assets which require management under court supervision. Someone under age 18 is a minor in Illinois and is considered by law to be incapable of managing himself or herself, his or her affairs, and his or her property.

Guardians of minors, like guardians of disabled adults, are of two types--a guardian of the person or a guardian of the estate or property. The guardian of a minor is typically a relative or close friend of the youngster. If the parents have died, the guardian often is nominated in the will of a parent. If the minor is age 14 or older and has no guardian, he may nominate one of his own choice with the court's approval. The guardian of the estate of the minor takes possession of the minor's property, holds and manages it, disburses money for his benefit, makes periodic accounting to the court, and makes a final settlement when the minor turns age 18.