Disabled Adult Guardianship Law Primer

In the event that a person does not have sufficient legal or mental capacity to make personal decisions or to handle the assets of his or her estate, a guardianship may be necessary.

The Illinois Probate act defines a "Guardian" as follows: "'Guardian' includes a representative of a minor and a representative of a person under legal disability." 755 ILCS 5/1-2.08. The Illinois Probate system governs guardianships in the State of Illinois. A Guardianship has two separate and distinct forms in Illinois. The Probate Act provides for Guardians for Disabled Adults and Guardians for Minors. In addition, regardless of the ward's status as a minor or a disabled person, a guardian may act in representative capacity over "the person", the "estate of the person" or both.

Guardianship For Diabled Adults

The Probate Act provides for an "Adjudication of Disability" over a Disabled Person by a Judge in the Probate Section of the Circuit Court of Illinois. Basically, upon petition to the court, a Judge can declare some person to be a representative for a disabled person. The guardian, as stated above, can be of the person, the person's estate or can be a "plenary" guardian, that is, the guardian of both the person and the estate.

A disabled adult is a person over age 18 with 1) mental deterioration or physical inability or 2) mental illness or developmental disability removing that person's ability to manage his person or estate. In addition, the probate act allows for a guardianship over persons who 'because of gambling, idleness, debauchery or excessive use of intoxicants or drugs, so spends or wastes his estate as to expose himself or his family to want or suffering", however, a guardianship over such an individual is quite rare.

Who Can Act As Guardian

A guardian may be a person, a public agency or not for profit corporation or any corporation qualified to accept and execute trusts in Illinois. A qualified corporation may only be guardian of an estate, while a person or a public agency or not for profit corporation may act as guardian of both the person or estate of the disabled person. Further, the same entity does not have to act as guardian of both the person and the estate. For example, a bank could be made guardian of a disabled person's estate while the disabled person's sister could be the guardian of the person.

Court Proceedings

The process for appointing a guardian requires that certain interested persons, usually parents, children and siblings and the person who is to be the guardian's ward receive notice of the proceedings. In addition, for a guardianship over a disabled person, a report from a doctor or qualified professional detailing the person's disability and need for a guardian should be obtained and presented to the court. The court may also appoint a guardian ad litem or "GAL" to speak with and review the case and present a report to the court recommending whether or not the proposed ward requires a guardianship.

Upon appointment of a guardian of an estate, the court will require inventories, budgets and accountings for the financial estate of the ward. In all types of guardianships, the process does not end with the appointment of the guardian, but is a process closely linked with the courts which want to retain some control over the guardianship situation.

Serivces And Fees

We represent guardians in guardianship proceedings, from the preparation and filing of the petition for guardianship with the Clerk of the Court to the final order of the Court closing the guardian estate and, if necessary, all of the accountings, reports, budgets and special requests in between.  We handle most of our cases in Cook County, Lake County and DuPage County.

Guardianship Services: Hourly attorneys fees range from $260-$275 per hour plus costs.

How To Get Started

The first step to the guardianship process is to speak with an attorney about the basis for the guardianship, a doctor's report, and the process of petitioning the court.  We are often willing to have a short (5 to 15 minutes) initial discussion over the telephone to determine if we can assist in your situation and to determine if we might be an appropriate match to work with you.  Face to face Initial consultations are by appointment only and a consultation fee is generally charged.  To get this process started, please feel free to contact Richard Magnone via email or by phone at 773-399-1122.