Updated: May 6, 2019
When it comes to Plenary Guardianship, there are a lot of factors that need to be considered and processes that need to be executed before the plenary guardianship is actually granted. Who will be the guardian? How much does it cost? What are the duties and responsibilities of the guardian and how do Illinois courts decide who to appoint as guardian? Is there already a health care directive in place? Equip yourself with knowledge and let us help you every step of the way before making drastic decisions.
Living Life with Dignity offers the assistance of knowledgeable, certified professional guardians who exceed industry standards. We are deliberate, thorough and ethical advocates who prioritize our client’s best interests. Prior to making any legal decisions, we work with the family to ensure sensitive issues are thoughtfully considered and appropriately communicated.
What is plenary guardianship?
Plenary Guardianship, also, referred to as conservatorship, is a legal process, utilized when a person can no longer make or communicate safe or sound decisions about his/her person and/or property or has become susceptible to fraud or undue influence.
Because establishing a guardianship may remove considerable rights from an individual, it should only be considered after alternatives to guardianship have proven ineffective or are unavailable.
How do I set up a plenary guardianship in Illinois and how long does it take?
It is best to seek the advice and assistance of a guardianship attorney. You can represent yourself Pro Se, but it is not recommended. However, if you don’t have the money to hire a lawyer there are places like Prairie State Legal or Administer Justice that may be able to help with the plenary guardianship or walk you through the process depending on your individual circumstances. Get in touch with us if you need assistance finding the right people to help.
Is there already a health care directive in place?
Each case is different. Given that there are different types of guardianship and 3 types of directives, (health, mental health and property), you need to establish what the need is. If there are directives for health and property but not for mental health and it is the mental health that is the cause for the individual’s lack of capacity, then you may need to consider plenary guardianship. In most cases, if a directive is in place, guardianship should not be necessary provided that there is a physician’s statement declaring that the individual does NOT have capacity. If you do not have that statement, then it is best to consult an attorney. My rule of thumb is when in doubt defer to someone who can give you a definite answer. You may have to pay for that advice but in the long run it will be worth it.
Who will be the guardian?
In most cases the court prefers to appoint a family member or close friend. Guardianship with a corporate guardian or public guardian can be costly to the individual’s estate. In addition, if the individual doesn’t have the means they will end up with the office of state guardianship. While this appointment is free to the individual, it is not the best means of support simply because of the ratio of client to state guardian.
If there is no one willing or able to be the guardian, and the individual has assets of $25,000 or more, a private corporate guardian such as Life with Dignity can be appointed, or the public guardian will be appointed.
What are the costs?
In any guardianship there are costs, which can be as little as $3,000. Let’s use the example of a parent of a disabled adult who seeks guardianship to continue care for their child. In most cases the adult child wants to stay at home and be taken care of by their family so they would not contest the guardianship and the court would see this favorably. The costs in this example would be for the guardian’s attorney and the guardian ad litem (GAL). A GAL is a person the court appoints to investigate whether the guardianship is appropriate. See Living Life with Dignity’s costs here.
In the case of a contested guardianship, whether it is contested by the individual or another friend or family member, the cost can be catastrophic.
Who is responsible for payment?
If you are the petitioner requesting the court to grant guardianship, responsibility for payment will depend on whether you are appointed or not. If you are appointed guardian, the estate of the Ward is responsible for all fees, including those of the GAL and all attorney’s fees. If, however, you are not appointed and it is determined that the individual does not need guardianship then you are responsible for all costs. In some cases, the individual may be expected to pay for their attorney but the GAL and your own attorney fees and any other fees such as medical testing bills would be the petitioners responsibility.
What are the duties and responsibilities of the plenary guardian?
If you are the guardian of the person only, then your duties are limited to making healthcare and mental healthcare, end of life decisions, and residential placement.
If you are guardian of the estate as well you are responsible for all financial matters. Including bill paying, benefits management and bookkeeping.
Regardless of what type of guardian you are each requires you to file an annual report. The county in which the guardianship is in has a form to be filled out annually that walks you through the healthcare portion of it. Annual reporting for guardian of the estate is a bit more intense and requires the guardian to report all expenditures for the Ward and account for any assets that were spent.
In addition, as guardian of the estate you will have to provide an inventory of assets to the court when you are first appointed. You will also have to provide an annual budget. It is important when creating the budget, that all of the ward’s needs are reflected in that budget. As guardian you are also expected to see your ward at least once per month.
What do courts consider when deciding who to appoint as guardian or conservator?
You cannot have a felony when applying to be a guardian and you must be over 18. The court requires the petitioner to prove evidence that the guardianship is necessary. Part of that evidence is a Physician’s report which is a form filled out by a doctor that states the individuals physical or mental health status.
The court will also examine the relationship and personal history of the person petitioning to determine the appropriateness. The GAL will interview the Petitioner and others in the respondent’s life and make a recommendation to the court. I have been involved in cases where the person that petitioned was not the person appointed.
The final verdict is disposed of by the Judge.
Is a guardianship forever?
It doesn’t have to be. If a ward is ill, say in a car accident or because of a mental illness, gets treatment and recovers, the ward can petition the court to have the guardianship removed or at the very least, limited. Again, this can be a costly process without considerable documentation as to the person’s progress. It helps if all parties agree to the guardianship removal.
Glossary of terms:
Petition: Formal written request to the court.
Petitioner: the person that files the petition.
Respondent: the person the petition is filed regarding.
Ward: the individual under guardianship
Conservator: Interchangeable term for guardian
Guardianship: The position of protecting or defending something or someone.
Guardian: Protector or Defender
Annual Report: A report written to the court on a yearly basis to inform the court of the ward’s status and to reinforce the continued need for the guardianship.
Residential Placement: Where the Ward is to live. This can be at his/her home, a group home or support living or nursing home. Most important is that it be appropriate and the least restrictive allowable.
Guardian Ad Litem: (GAL): An attorney appointed by the court to represent the court in determining the appropriateness of the guardianship.
Felony: a crime, typically one involving violence, regarded as more serious than a misdemeanor, and usually punishable by imprisonment for more than one year or by death.