Answer: There are several types of guardianship available under the Illinois Probate Act. It is important that all available options be considered to determine the appropriate form of guardianship for a specific person with disabilities. In each case, consideration should be given to requesting either limited or plenary guardianship. Limited guardianship is used when the person with disabilities can make some, but not all, decisions regarding his/her personal care and/or finances.
The basic forms guardianship can take follow Under Illinois Law:
- Limited Guardianship – used when the person with disabilities can make some, but not all, decisions regarding his/her person and/or estate. “Guardianship shall be ordered only to the extent necessitated by the individual’s mental, physical and adaptive limitations.” A limited guardian makes only those decisions about personal care and/or finances which the ward cannot make. The powers of a limited guardian must be specifically listed in the court order. The ward retains the power to make all other decisions regarding his/her person or estate. Limited guardianship may be used to appoint a limited guardian of the person, a limited guardian of the estate, or both.
- Plenary Guardianship – used when the “individual’s mental, physical and adaptive limitations” necessitate a guardian who has the power to make all important decisions regarding the individual’s personal care and finances. Plenary guardianship may be used for the person, the estate, or both.
- Guardianship of the Person – used when a person, “because of his disability, lacks sufficient understanding or capacity to make or communicate responsible decisions regarding the care of his person.” The guardian of the person makes decisions regarding the “support, care, comfort, health, education,…maintenance, and…professional services” (such as educational, vocational, habilitation, treatment and medical services) for the person under guardianship who is called a ward.
- Guardianship of the Estate – used when the person “because of his disability…is unable to manage his estate or financial affairs”. A guardian of the estate makes decisions about management of the ward’s property and finances.
- Temporary Guardianship – used in an emergency situation. Temporary guardianship can last no longer than 60 days and is a means to assure that the person who evidences need for guardianship receives immediate protection.
- Successor Guardianship – used upon the death, disability, or resignation of the initially appointed guardian, when guardianship is still needed.
- Testamentary Guardianship – used by parents of a person with disabilities and designates, by will, a person who assumes the guardianship appointment upon the death of a parent. The designated person must still be appointed by the court before he/she can serve as guardian. The court will consider the designated person but is not bound by the testamentary designation. It can appoint someone else if the proposed guardian is found to be inappropriate.
Janna Dutton, Attorney at Law
Dutton & Casey, P.C.
Chicago, Illinois 60603