Guardianship Administration & Litigation

What is a Guardianship?

When a person has a developmental disability or is cognitively impaired due to age or illness, he may lack the requisite mental competency to give prompt and intelligent consideration to financial and healthcare matters.

Guardianships are the Court-supervised procedures whereby people (usually family members) are appointed as agents to protect those who cannot protect themselves (“Wards”).

There are two types of Guardians. “Guardians of the Person” deal with the healthcare, custody, residential placement and general care of a Ward. “Guardians of the Estate” deal with a Ward’s financial matters.

The extent of a Guardian’s powers can vary in scope. “Plenary” Guardians have full power to deal with a Ward’s person or estate. “Limited” Guardians have something less than full power as defined by the Court. Generally, the extent of a Guardian’s power is proportional to the extent of the Ward’s disability.

Guardianships can vary in duration as well. In emergency situations, a Court might appoint a “Temporary” Guardian. Temporary Guardianships are easier to obtain, but usually last for only 60 days. Plenary Guardianships last until the Ward is restored to competency, but take longer to get into place. Often, when there is cause to do so, a Court will appoint someone as a Temporary Guardian until that person can be appointed as a Plenary Guardian.

Although most Guardianships arise in the context of protecting a person with a disability or illness, Guardianships are also used for minor children.

What is Guardianship Administration?

All Guardians are appointed by, and remain accountable to, the Probate Court. When the Court appoints a Guardian, it opens a Guardianship estate. Guardianship estates are a form of Probate estate.

It is the Guardian’s job to manage the Ward’s basic day-to-day routine, oversee the Ward’s care and finances, and make sure that the Ward is not harmed or neglected. The Guardian must report back to the Court at least once per year on the condition of the Ward and his estate.

Guardians must always act with the Ward’s benefit in mind. Thus, for example, the Guardian has no authority to use estate funds for anyone other than the Ward and must take steps to ensure that those funds are adequately protected for the Ward.

Although a Guardian may appear to have considerable authority, in reality, those powers have merely been delegated to the Guardian. It is the Court that has final authority.

Accordingly, Guardians must be sure that they are acting within their power at all times. For major decisions, especially residential placement, extraordinary expenditures, or significant medical care, the Guardian must seek Court approval and authorization to act.

Guardians of the Estate must report back to the Probate Court once per year and provide an Accounting. The Accounting must disclose all of the estate’s financial information including the estate’s receipts, disbursements and distributions. Failure to properly provide these accountings may result in personal liability to the Guardian.

Guardians of the Estate must also, at the estate’s expense, maintain surety bonds for their service. A surety bond is similar to an insurance policy for the estate. The purpose of the surety bond is to reimburse the estate for any losses due to the Guardian’s error, negligence or malfeasance. The surety bond is meant to protect the Ward and his estate, not the Guardian. If the surety bond is called upon to reimburse the estate for some loss, the surety bond company will seek repayment from the Guardian of the Estate personally.

Establishing and administering a Guardianship requires many steps, including the following:

1. Petition the Court for a finding that the Ward is a “disabled person” under the Illinois Probate laws, with notice to the Ward;
   
2. Produce a report signed by a qualified physician stating that based upon an examination performed within the last three months, the Ward is a disabled person and needs a guardian;
   
3. Provide notice to all other close family members;
   
4. Allow a Court-appointed representative (the “guardian ad litem”) to visit with the Ward and explain the proceedings to the Ward;
   
5. Attend a Court hearing to have the Ward adjudicated a disabled person and have the Guardian appointed;
   
6. Report back and account to the Court on an annual basis thereafter;
   
7. Seek Court authorization for extraordinary actions taken on behalf of the Ward;
   
8. Maintain the Ward’s investments according to the specific requirements of the Probate Act; and
   
9. Generally ensure that the Ward’s needs are being met.

What is Guardianship Litigation?

Guardianship Litigation is a form of Probate Litigation. Guardianship Litigation occurs in the Probate Court where a Guardianship has been initiated. Guardianship Litigation can take many forms, including the following:

1. Disability. Litigation may occur over whether a Ward is truly disabled and if so, to what extent.
2. Guardian Selection. Litigation may occur over who should act as Guardian.
3. Removal Actions. A Removal Action is a lawsuit filed by an interested person to remove the Guardian from office because of some improper conduct.
4. Accounting Actions and Objections to Accountings. An Accounting Action or Objections to Accountings are lawsuits filed by an interested person to have a Guardian fully reveal and explain the estate’s financial activity.
5. Action for Damages. An interested person may sue a Guardian personally for money if the Guardian has materially breached his duties.
6. Instructions. In some cases, a Guardian finds herself in a position where she could be sued no matter what she does. In these instances, the Guardian can petition the Court for instructions on what to do.
7. Citations. Citation actions are lawsuits in which a person seeks to augment the value of the estate by recovering property from a third person.
8. Claims. Claims are actions filed by third parties seeking to recover money or property from an estate.
9. Challenges to Fees. In some cases, a Guardian or his attorney may have charged fees to the estate that are suspect. An interested person has the ability to bring an objection to the payment of those fees.

Guardianship Administration and Litigation requires substantial experience and skill. No one should participate in Guardianship Administration or Litigation without the assistance of a qualified attorney.