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RSSIn Illinois, parents of a child with a mental illness lose their right to make decisions about their child’s personal care and finances once their child turns 18. After that age, parents can continue making decisions for their child only if they can convince their child to give them that right or they persuade a court to appoint them as their child’s guardian.
Alternatives to Guardianship
Because a guardianship is an extreme intervention into the private life of an individual, requires court supervision, and can be extremely difficult to end, alternatives should be considered:
- Durable Power of Attorney. By signing a durable power of attorney [a sample can be found at 755 ILCS (short for Illinois Compiled Statutes, available at www.ilga.gov/legislation/ilcs/ilcs.asp) 45/3-3], your child can authorize you to manage some or all of his or her financial affairs.
- Power of Attorney for Health Care (also referred to as an “Advance Directive”). By signing a Power of Attorney for Health Care (a sample can be found at 755 ILCS 45/4-10), your child can authorize you to make health care decisions on his or her behalf.
- Mental Health Treatment Preference Declaration. By signing a Declaration for Mental Health Treatment (a sample can be found at 755 ILCS 43/75), your child can authorize you to make decisions regarding his or her mental health treatment if he or she becomes incapable of giving informed consent.
When a Guardian Can Be Appointed for an Adult Child
That an individual has a mental illness or periodically makes incorrect or ill-advised decisions does not necessarily mean that the individual requires a guardian. Under Illinois law, a court can appoint a guardian for an adult with a mental illness only if, because of the illness, the individual lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his or her personal care or is unable to manage his or her financial affairs.
In determining whether an individual can make responsible decisions, courts focus on whether the individual can understand that a decision needs to be made, what options are available, and what the consequences of each option are.
Who May Be Appointed as a Guardian
Any individual 18 or older, public agency, or nonprofit corporation able to provide needed services can be appointed as a guardian to mange an individual’s personal care and financial affairs. A corporation qualified to accept and execute trusts can be appointed as a guardian to manage an individual’s financial affairs but not to make decisions regarding an individual’s personal care.
Types of Guardianships
- Limited Guardianship. The guardian may make only those decisions about an individual’s personal care and finances as specified by the court order appointing the guardian. The person under guardianship (that person is referred to as a “ward”) may make all other decisions.
- Plenary Guardianship. The guardian is authorized to make all important decisions regarding the ward’s personal care and/or finances.
- Guardianship of the Person. A guardian of the person makes decisions regarding personal affairs, such as the education, housing, and medical care of the ward.
- 4. Guardianship of the Estate. A guardian of the estate manages a ward’s financial affairs.
- 5. Guardianship of the Person and Estate. A guardian of the person and estate makes decisions about a ward’s personal care and manages the ward’s financial affairs.
- 6. Temporary Guardianship. If a guardian is needed in an emergency, a judge can appoint a temporary guardian without having to hold a hearing. A temporary guardian can serve no more than 60 days.
Whether You Need a Lawyer To Have a Guardian Appointed
Although you don’t need a lawyer to ask a court to appoint a guardian, a lawyer can be helpful if you expect your child to oppose appointment of a guardian or complicated personal or financial issues will have to be explained to a judge. Any lawyer you hire should be experienced in obtaining guardianships.
Procedure for Appointing a Guardian
The following steps have to be taken to appoint a guardian if your child lives in Cook County (similar steps have to be taken in other Illinois counties):
1. Complete as much as you can of the following Probate Court forms (available at www.cookcountyclerkofcourt.org) and take them to the Daley Center:
- Report of Physician (CCP 0211), signed by a physician certifying that your child has a mental illness and needs a guardian. The physician and all other professionals whose evaluations are used for the report must have examined your child within three months before the date that you file a petition for guardianship.
- Probate Division Cover Sheet (CCP 0199).
- Petition for Appointment of Guardian for Disabled Person (CCP 0200). Five copies are needed.
- Summons for the Appointment of Guardian for Disabled Person (CCP 0201 A). This form tells your child to appear at a hearing to decide whether a guardian should be appointed. Three double-sided copies are needed.
- Notice of Rights of Respondent (CCP 0201 C). This form, part of the Summons, gives your child notice of the date, time, and place of the hearing and your child’s legal rights (e.g., your child has the right to be represented by a lawyer of his or her own choosing or a court-appointed lawyer, the right to an independent medical evaluation, and the right to have a jury of six persons hear the case instead of a judge).
2. File the Petition with the Probate Court Clerk and ask which judge has been assigned to hear the case.
3. Go to the judge’s courtroom and ask the judge’s clerk to set a date and time for a guardianship hearing. Record that information on the Petition, Summons, and Notice of Rights.
4. Have the Probate Court Clerk sign the Summons.
5. Go to the Cook County Sheriffs Office and arrange to have a sheriff deliver the Summons, Petition, and Notice of Rights to your child. It is possible to have someone other than a sheriff make the delivery if you’re concerned that the appearance of a sheriff will upset your child (or want to avoid the cost of having a sheriff make the delivery).
6. Prepare a Notice of Motion to the Respondent’s Relatives. In this Notice you tell those relatives listed in Exhibit A to the Summons the date, time, and location of the guardianship hearing and that they may participate in the proceedings.
7. Mail a copy of the Petition and Notice of Motion to each of the relatives listed in Exhibit A to the Summons.
8. The court will appoint a guardian ad litem (an attorney or person qualified, by training or experience, to work with or advocate for individuals with a mental illness) to meet with your child and testify in court whether or not it would be in your child’s best interests to have a guardian.
9. Bring the following (forms listed that you have not previously completed are available at www.cookcountyclerkofcourt.org) to court on the date of the hearing:
- The original and one copy of the Report of Physician (CCP 0211).
- Your copy of the Petition for Appointment of Guardian for Disabled Person.
- The original and one copy of the Order Appointing Guardian Ad Litem for Disabled Person (CCP 0209).
- A blank original of the Order Appointing Plenary Guardian for Disabled Person (CCP 0204).
- A blank original of the Order Appointing Limited Guardian for Disabled Person (CCP 0207).
- The original and one copy of the Oath and Bond of Representative – No Surety (CCP 0313). By signing this form, a person agrees to act as guardian and promises to be responsible for financial damages up to an amount equal to double the value of the ward’s personal estate.
- A copy of the Notice of Motion sent to each relative.
10. You should be prepared to have at least one witness (such as a therapist, nurse, or social worker) testify at the hearing, although witnesses are rarely called in Cook County unless appointment of a guardian is contested or there is some unusual circumstance. The doctor who signs the Report of Physician does have to testify unless the court requires the doctor’s attendance.
Cost of Guardianship Proceedings
Legal fees have to be paid if you hire a lawyer. You have to pay a fee for filing a request for a guardianship and for having a sheriff deliver a summons. Any guardian appointed is entitled to reasonable compensation (which you may have to pay if your child can’t).
