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Advancing the Human & Civil Rights of People with Disabilities in Illinois

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Overview

Guardianship: What you need to knowGirl who is blind, smiling and sitting on a bench

  • Only a judge can appoint a guardian.
  • Guardianship takes away the rights of a person to fully manage his or her affairs.
  • During a guardianship proceeding, the judge decides whether an adult lacks the understanding or capacity to make decisions about personal or financial matters.
  • Because guardianship deprives a person of liberty, it should be used only when absolutely necessary.
  • There are two types of guardianship: guardianship of the estate and guardianship of the person.
  • Guardianship of the estate addresses financial decision-making.
  • Guardianship of the person addresses personal decision-making.
  • Each of type of guardianship can be plenary (full) or limited (partial).
  • If guardianship is necessary, it should be confined to those areas in which the person (ward) needs assistance.

The guardian must work to honor the preferences and wishes of the ward, and to foster the ward’s independence.

Only a judge can appoint a guardian

Appointing a guardian for an adult is a very serious matter and must be decided by a judge.  The judge can appoint a guardian only if the person with a disability is unable to make decisions about personal or financial matters.  Because guardianship deprives a person of liberty by taking away a person’s right to fully manage his or her affairs, it should be pursued only when absolutely necessary. Other legal and nonlegal tools can help people with disabilities manage their affairs in ways that are less intrusive and often more effective than a guardianship, such as:

  • Power of attorney to transact financial affairs
  • Power of attorney for health care
  • Health care surrogacy
  • Mental health advance directives
  • Representative payees
  • Bill-paying assistance programs
  • In-home supports
  • Advocacy services

Before family members go to court to be appointed a guardian, they should consider whether a guardianship is truly necessary or whether there are alternatives that can meet the needs of the person with a disability without unnecessarily depriving the person of liberty.

Guardianships should be narrowly tailored

Guardianships should always be narrowly crafted to meet the needs of the individual.  They should not be broad, as this unnecessarily interferes with the liberty of the person with a disability.  A person who needs help only with financial decision-making does not need a guardian over his or her person.  Someone who needs help making personal decisions but is able to handle his or her money does not need a guardianship over the estate.  In addition, guardianships need not be plenary (full); they can be limited (partial), based on the person’s strengths and deficits.  A limited guardian makes only those decisions about personal care and finances that the ward is unable to make.  For example, a guardianship over the estate can be limited to entering into contracts, allowing the person under the guardianship to make smaller, everyday financial decisions.  Similarly, a guardianship over the person can be limited to health and employment decisions, but allow the person to choose where to live.  The authority of a limited guardian must be specifically set forth in the court order.

Guardians must honor the ward’s wishes

Even where a full guardianship is necessary, the guardian must follow the ward’s wishes as much as possible and foster the ward’s independence and self-reliance.  A guardian of the person must make decisions as the ward would have done if competent, guided by the stated preferences of the ward (stated either before or during the guardianship). Decisions must represent the ward’s moral, religious, philosophical and personal beliefs.  If the wishes of the ward are unknown even after reasonable efforts are made to learn them, the guardian must make decisions in the ward’s best interest.  A guardian may not consent to the sterilization of a ward unless a court hearing determines it’s legal.  All decisions made by a guardian of the person must be made with the goal of assisting the ward in developing maximum self-reliance and independence.  A guardian of the estate must be frugal in managing the ward’s assets.  The guardian must file an annual accounting with the court. In making disbursements from the estate, the guardian must act in the ward’s best interest and, at the same time, carry out the ward’s wishes as best they can be understood.


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Last updated: January 25, 2018

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