Guardianship 101: Managing the Estate of your Loved One

Here in Illinois, understanding the many moving parts that go into legal guardianship can be complicated, and can easily become overwhelming — especially if you’re navigating this tricky process for the first time.

Guardianship is a legal process that is used to protect vulnerable individuals who are unable to care for themselves and/or their financial affairs. In Illinois, a guardian can be appointed for a minor child or for an adult who has been adjudicated as disabled. Some states also use the term “conservatorship.”  In cases of guardianship over a minor or an adjudicated disabled adult (commonly referred to as the “ward”), the Court will appoint a suitable guardian for the minor or ward’s person, estate, or both.

Guardianship of a Minor

A minor child may need a guardian if their parents have died, or if the parents cannot or will not properly care for the child. In other cases, a minor may need a guardian if their parents’ whereabouts are unknown, or if the parents agree to the guardianship on a short-term basis. Many people use their estate plan to name a guardian preference for their minor children in the event that they pass away or become incapacitated; often, this “standby guardian” will be a grandparent, aunt or uncle, or a friend of the family.  Married couples should agree in advance as to their guardian preferences so as to avoid a potentially heated and costly fight in court in the future.  Even with an agreement, a guardian for a minor must be appointed by the court. In most cases, he or she will be legally responsible for the child until they are properly discharged by the court, or when the child turns 18.

Guardianship of an Adult

Guardianship of an adult occurs in situations where the court believes that a person who is 18 years or older cannot make basic life decisions or properly manage their property or estate. In order for a guardian to be appointed for an adult, there must first be an adjudication of a disability.  This adjudication of disability requires the involvement of a certified physician, who will complete a Report on the potential ward’s physical and mental capacity, which is then reviewed in the guardianship proceeding.  Next, the court will also need to make a finding that the proposed guardian is suitable.

The types of adults who may benefit from guardianship include seniors who have experienced severe mental or physical decline as a result of aging, adults with limiting physical impairments, or individuals with developmental disabilities. Guardianship for an adult is often considered for adult children who can live somewhat independently, but still need regular assistance, as well as elderly adults facing Alzheimer’s disease or dementia, which may leave them susceptible to scams, fraud, and dangerous situations.

Three Types of Guardianship:

In Illinois, an individual can serve as a guardian of the person, a guardian of the estate, or a guardian of the estate and person.

These three types of guardianship come with different rights, responsibilities, and expectations, as outlined below:

The Role of the Guardian of the Person for Minors and Adults

A guardian of the person is one whose responsibilities are to care for their ward’s physical and personal needs.

For minors, the guardian of the person is responsible for making sure that the minor is clothed, fed, housed, and kept safe. The guardian of the person is also there to ensure that the child receives proper education and medical care. As a result of these important duties, the guardian of the person will make day-to-day decisions on the child’s behalf, and they generally handle the child’s routine expenses. The guardian of the person must follow all court orders relating to the child and may apply and receive public benefits for the child, as applicable. In many cases, the minor may still have contact and/or visitation with their parents or other extended family.

Guardianship of the person has similar requirements in the case of an elderly or incapacitated adult. Most importantly, the guardian of the person will be responsible for two key issues: medical decision making and residential placement. The guardian of the person will make decisions about care and support for their adult ward. This may mean helping the adult to arrange medical services and treatment, while also ensuring that they have suitable living conditions. In all personal decisions, it is expected that the guardian of the person will take into account their ward’s wishes, as well as his or her physical needs and financial circumstances.  After the guardian is appointed, they will be required to submit an annual report on the above.

The Role of the Guardian of the Estate for Minors and Adults

Broadly speaking, a guardian of the estate is responsible for overseeing financial matters on behalf of their ward.

For minors, a guardian of the estate is tasked with managing and protecting any money and property owned by the child. The guardian of the estate is generally limited in how they can spend these assets, and must only use these funds, accounts, property, or investments for the benefit of the child and with approval of the court.

For adults, guardianship of the estate is typically used for those who cannot manage their own financial affairs, but who have enough income or assets for a guardian to be appointed. The guardian is responsible for preserving and protecting the ward’s assets, appraising property as necessary, budgeting, and distributing income as applicable.  They will also be tasked with helping the ward receive any available State benefits.  As with a guardian of the person, the guardian of the estate for an adult must regularly report to the courts on the status of the estate, or how money was spent to cover the ward’s expenses. A guardian of the estate must also appear for the disabled person’s legal proceedings.

Guardian of the Estate and Person

In some cases, the guardian for a minor or an adult may be granted guardianship of the estate and person, which combines the duties described above. This means that the guardian will be responsible for protecting their ward personally, while also managing money and property for his or her benefit.

In situations where the guardian of the person and the guardian of the estate are not one in the same, these two guardians must often work closely together. For example, the guardian of the estate may need to provide funds from the ward’s accounts to reimburse or cover expenditures that the guardian of the person must make to provide for the minor or adult’s care.

Understanding Guardianship in Illinois

Whether you have a child with special needs, custody of a minor child, or an aging parent in your care, we believe that guardianship is often a healthy and proactive option for all involved. The Law Offices of J. Jeltes can assist in matters relating to the guardianship of minor children and disabled adults in Chicago and the state of Illinois. Visit www.jelteslaw.com.

Looking to protect a family member’s health and assets? Have any more questions about legal guardianship in Illinois? Curious about what it takes to get the guardianship process started? Don’t hesitate to get in touch to begin the conversation.

Content provided by Women Belong member Jenny Jeltes