Ensuring Guardians Comply With Their Duties

When a guardian is appointed for a person with a disability (the “ward”), the guardian is required to follow certain guidelines.  There are two types of guardianships in Illinois, and they each have different rules to follow.

The first is “guardianship of the person.”  The guardian of the person is responsible for securing the support, care, comfort, education, and professional services for the ward.  Pursuant to the Illinois Probate Act, the guardian of the person is also expected to assist the ward in the development of maximum self-reliance and independence.  Despite the fact that guardians seemingly have a substantial amount of authority, they are not given carte blanche permission to make every decision associated with the ward.  A guardian is still expected to listen to the wishes of the ward and make an effort to carry out those wishes.  Furthermore, a guardian cannot change the residential placement of the ward without explicit authorization from the court.  This prevents a guardian from being able to place a ward in a nursing home without a thorough investigation by the court to determine if that home is in the ward’s best interests.

The second type of guardianship is called the “guardianship of the estate.”  The estate guardian is responsible for handling the finances and assets of the ward.  He/she is expected to manage the estate frugally and apply the income and principal of the estate so far as necessary for the comfort and suitable support and education of the ward (755 ILCS 5/11a-18).  The guardian may make payments directly to the ward, or to a third party to pay for things like rent, food, clothing, entertainment, etc.  Once again, this is a significant amount of power, but it is not without its limits.  A guardian of the estate can only spend the ward’s assets on things that directly benefit the ward or the ward’s minor or adult dependent children.  If the guardian is not following these guidelines, it may be grounds for the guardian to be removed.

One way in which the court monitors the ongoing appropriateness of the guardianship is by requiring annual reports to be submitted to the court.  The guardian of the person is required to submit a report which addresses the following items:

(1) The current mental, physical, and social condition of the ward and the ward’s minor and adult dependent children;

(2) Their present living arrangement, and a description and address of every residence where they lived during the reporting period and the length of stay at each place;

(3) A summary of the medical, educational, vocational, and other professional services given to them;

(4) A resume of the guardian’s visits with and activities on behalf of the ward and the ward’s minor and adult dependent children;

(5) A recommendation as to the need for continued guardianship; and

(6) Any other information requested by the court or useful in the opinion of the guardian.

The guardian of the estate is also required to submit an annual report which is in the form of an accounting.  The estate guardian must account for all income and expenses for the ward’s assets, and must be able to document each of the transactions.  The family members of the ward are entitled to view these reports and/or be present at any court hearings pertaining to these reports.  If the family members have concerns about the reports, it is best to raise these concerns to the judge.  It may also be necessary to take more extreme actions, including seeking to have a guardian removed.

Michael J. Drabant is an attorney who practices in the areas of Guardianship, Estate Planning, Probate, Elder Law, and Civil Litigation.  He can be reached at 708-482-7090 or by email at m.drabant@wilsonwilsonllc.com