Updated: May 6, 2019
Jim was becoming increasingly confused and estranged, and his actions were unpredictable. One day his wife asked him to put the kettle on for a cup of tea; he replied ‘yes’. When his wife came back into the kitchen a short while later, he was just standing there staring at the kettle as if it were a foreign object. It seemed he had lost interest in life, his financial affairs were in disarray, and he could no longer find the words to communicate it.
He had forgotten how to drive, read, or perform any normal daily tasks, to the point where he was unable to dress himself in the morning.
His aging and unwell wife was finding it impossible to manage his dementia and their estate any longer, and he clearly could not care for himself. Jim’s wife took him to the doctor and her worst fears were realized – the doctor declared him incapable of making decisions for himself.
It was time to consider plenary guardianship, as Jim was not competent to enter into a Power of Attorney, the document in which a competent person grants authority to another individual to act on his/her behalf. See Dementia and Guardianship
Plenary guardianship is when the court finds an individual incapable of caring for themselves, and therefore gives a legal guardian rights over and responsibilities towards that individual or “ward”. Plenary guardianship must be appointed by the court. This kind of petition would include the name of the person in need of guardianship, their date of birth and address, and a report by a doctor stating the physical and mental incapability of the person. See What is the Difference between Guardianship and Power of Attorney?
Types of Guardianship
Other less restrictive types of guardianship do exist and the court will decide which is suitable for the individual in question. Illinois law permits several different types of adult guardianship:
A limited guardianship permits the guardian to make some, but not all, decisions for the person under the guardianship.
Guardian of the Person and Guardian of the Estate
There are different types of plenary guardianship – it may be as to the person (personal care, education, and medical services) or as to the estate (financial affairs and property) or as to both.
In emergencies, the court may appoint a temporary guardian for up to 60 days to protect a person with special needs’ interests.
A successor guardian takes over the guardianship when the initially appointed guardian no longer can serve.
Parents of children with special needs use testamentary guardianships to protect their children who are living under guardianships in case of the parent’s death.
Duties of the Plenary Guardian
A Plenary Guardian has legal rights by the court to make all decisions for the person that is found to be incompetent. It is important to note that this is a legal appointment, not a medical appointment. The medical report presented to the court is only part of what a judge will consider in making a decision for a potential ward. Once someone is under guardianship they will not be able to engage in certain activities. This is including, but not limited to, their estate. While someone is under the care of a guardian they may not:
Consent to medical treatment
Make end-of-life decisions
Possess a driver’s license
Manage, buy, or sell property
Own or possess a firearm or weapon
Contract or file lawsuits
The plenary guardian is responsible for managing the needs of that person. If proper housing needs to be secured, it is the responsibility of the guardian. If medical needs have to be addressed, it is the responsibility of the guardian. The guardian is also to manage the client’s financial and insurance needs, including applying for Medicare or Medicaid or Social Security if necessary. Some additional things a plenary guardian can be responsible for include the following:
Determine and monitor residence
Consent to and monitor medical treatment
Consent and monitor non-medical services such as education and counseling
Consent and release of confidential information
Make end-of-life decisions
Act as representative payee
Maximize independence in least restrictive manner
Report to the court about the guardianship status at least annually
Marshall and protect assets
Obtain appraisals of property
Protect property and assets from loss
Receive income for the estate
Make appropriate disbursements
Obtain court approval prior to selling any asset
Report to the court or estate status
Plenary Guardian Requirements
It is required by Illinois law that a plenary guardian be 18 years or older without a felony and capable of the responsibility. It also states that you cannot be in service to the ward other than to provide guardianship services and that there may not be any debt owed to you by the ward. These simple requirements come with much responsibility. Often a well-intended family member is willing to take on this role without fully understanding the magnitude of what they are getting into. Knowing all there is to know to help someone in need of a guardian is challenging. The impact of being the caregiver can be tremendous. See Recognizing the Signs of Caregiver Burnout
If you find yourself in this situation, we suggest you sit down with a good estate and probate attorney experienced in these matters to learn what is involved before you decide to take it on. If you have already accepted an appointment then your attorney might be able to help you manage and understand the requirements.
As advocates and professional guardians we can help you put a plan in place that is easy to follow and maintain. You don’t have be in this alone. With professional expertise you will have the support you need to be the best guardian for your loved one and know you are making the right decisions.
If you have any questions regarding guardianship, please post them below so we can raise awareness and help others who might be facing similar issues.