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Article XIa - Guardians For Disabled Adults

      (755 ILCS 5/Art. XIa heading)ARTICLE XIa GUARDIANS FOR DISABLED ADULTS

(755 ILCS 5/11a‑1) (from Ch. 110 1/2, par. 11a‑1)     Sec. 11a‑1. Developmental disability defined.) "Developmental disability" means a disability which is attributable to: (a) mental retardation, cerebral palsy, epilepsy or autism; or to (b) any other condition which results in impairment similar to that caused by mental retardation and which requires services similar to those required by mentally retarded persons. Such disability must originate before the age of 18 years, be expected to continue indefinitely, and constitute a substantial handicap. (Source: P.A. 80‑1415.)

    (755 ILCS 5/11a‑2)(from Ch. 110 1/2, par. 11a‑2)
    Sec. 11a‑2. "Disabled person" defined.) "Disabled person" means a person 18 years or older who (a) because of mental deterioration or physical incapacity is not fully able to manage his person or estate, or (b) is a person with mental illness or a person with a developmental disability and who because of his mental illness or developmental disability is not fully able to manage his person or estate, or (c) because of gambling, idleness, debauchery or excessive use of intoxicants or drugs, so spends or wastes his estate as to expose himself or his family to want or suffering, or (d) is diagnosed with fetal alcohol syndrome or fetal alcohol effects.
(Source: P.A. 95‑561, eff. 1‑1‑08.)

(755 ILCS 5/11a‑3) (from Ch. 110 1/2, par. 11a‑3)     Sec. 11a‑3. Adjudication of disability; Power to appoint guardian.     (a) Upon the filing of a petition by a reputable person or by the alleged disabled person himself or on its own motion, the court may adjudge a person to be a disabled person, but only if it has been demonstrated by clear and convincing evidence that the person is a disabled person as defined in Section 11a‑2. If the court adjudges a person to be a disabled person, the court may appoint (1) a guardian of his person, if it has been demonstrated by clear and convincing evidence that because of his disability he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the care of his person, or (2) a guardian of his estate, if it has been demonstrated by clear and convincing evidence that because of his disability he is unable to manage his estate or financial affairs, or (3) a guardian of his person and of his estate.     (b) Guardianship shall be utilized only as is necessary to promote the well‑being of the disabled person, to protect him from neglect, exploitation, or abuse, and to encourage development of his maximum self‑reliance and independence. Guardianship shall be ordered only to the extent necessitated by the individual's actual mental, physical and adaptive limitations. (Source: P.A. 93‑435, eff. 1‑1‑04.)

(755 ILCS 5/11a‑3.1)     Sec. 11a‑3.1. Appointment of standby guardian.     (a) The guardian of a disabled person may designate in any writing, including a will, a person qualified to act under Section 11a‑5 to be appointed as standby guardian of the person or estate, or both, of the disabled person. The guardian may designate in any writing, including a will, a person qualified to act under Section 11a‑5 to be appointed as successor standby guardian of the disabled person's person or estate, or both. The designation must be witnessed by 2 or more credible witnesses at least 18 years of age, neither of whom is the person designated as the standby guardian. The designation may be proved by any competent evidence. If the designation is executed and attested in the same manner as a will, it shall have prima facie validity. Prior to designating a proposed standby guardian, the guardian shall consult with the disabled person to determine the disabled person's preference as to the person who will serve as standby guardian. The guardian shall give due consideration to the preference of the disabled person in selecting a standby guardian.     (b) Upon the filing of a petition for the appointment of a standby guardian, the court may appoint a standby guardian of the person or estate, or both, of the disabled person as the court finds to be in the best interest of the disabled person. The court shall apply the same standards used in determining the suitability of a plenary or limited guardian in determining the suitability of a standby guardian, giving due consideration to the preference of the disabled person as to a standby guardian. The court may not appoint the Office of State Guardian, pursuant to Section 30 of the Guardianship and Advocacy Act, or a public guardian, pursuant to Section 13‑5 of this Act, as a standby guardian, without the written consent of the State Guardian or public guardian or an authorized representative of the State Guardian or public guardian.     (c) The standby guardian shall take and file an oath or affirmation that the standby guardian will faithfully discharge the duties of the office of standby guardian according to law, and shall file in and have approved by the court a bond binding the standby guardian so to do, but shall not be required to file a bond until the standby guardian assumes all duties as guardian of the disabled person under Section 11a‑18.2.     (d) The designation of a standby guardian may, but need not, be in the following form: DESIGNATION OF STANDBY GUARDIAN [IT IS IMPORTANT TO READ THE FOLLOWING INSTRUCTIONS:         A standby guardian is someone who has been appointed

by the court as the person who will act as guardian of the disabled person when the disabled person's guardian dies or is no longer willing or able to make and carry out day‑to‑day care decisions concerning the disabled person. By properly completing this form, a guardian is naming the person that the guardian wants to be appointed as the standby guardian of the disabled person. Signing the form does not appoint the standby guardian; to be appointed, a petition must be filed in and approved by the court.]

1. Guardian and Ward. I, (insert name of designating

guardian), currently residing at (insert address of designating guardian), am the guardian of the following disabled person: (insert name of ward).

2. Standby Guardian. I hereby designate the

following person to be appointed as standby guardian for my ward listed above: (insert name and address of person designated).

3. Successor Standby Guardian. If the person named

in item 2 above cannot or will not act as standby guardian, I designate the following person to be appointed as successor standby guardian for my ward: (insert name and address of person designated).

4. Date and Signature. This designation is made

this (insert day) day of (insert month and year).

Signed: (designating guardian)         5. Witnesses. I saw the guardian sign this

designation or the guardian told me that the guardian signed this designation. Then I signed the designation as a witness in the presence of the guardian. I am not designated in this instrument to act as a standby guardian for the guardian's ward. (insert space for names, addresses, and signatures of 2 witnesses)

(Source: P.A. 90‑796, eff. 12‑15‑98.)

(755 ILCS 5/11a‑3.2)     Sec. 11a‑3.2. Short‑term guardian.     (a) The guardian of a disabled person may appoint in writing, without court approval, a short‑term guardian of the disabled person to take over the guardian's duties, to the extent provided in Section 11a‑18.3, each time the guardian is unavailable or unable to carry out those duties. The guardian shall consult with the disabled person to determine the disabled person's preference concerning the person to be appointed as short‑term guardian and the guardian shall give due consideration to the disabled person's preference in choosing a short‑term guardian. The written instrument appointing a short‑term guardian shall be dated and shall identify the appointing guardian, the disabled person, the person appointed to be the short‑term guardian, and the termination date of the appointment. The written instrument shall be signed by, or at the direction of, the appointing guardian in the presence of at least 2 credible witnesses at least 18 years of age, neither of whom is the person appointed as the short‑term guardian. The person appointed as the short‑term guardian shall also sign the written instrument, but need not sign at the same time as the appointing guardian. A guardian may not appoint the Office of State Guardian or a public guardian as a short‑term guardian, without the written consent of the State Guardian or public guardian or an authorized representative of the State Guardian or public guardian.     (b) The appointment of the short‑term guardian is effective immediately upon the date the written instrument is executed, unless the written instrument provides for the appointment to become effective upon a later specified date or event. A short‑term guardian appointed by the guardian shall have authority to act as guardian of the disabled person for a cumulative total of 60 days during any 12 month period. Only one written instrument appointing a short‑term guardian may be in force at any given time.     (c) Every appointment of a short‑term guardian may be amended or revoked by the appointing guardian at any time and in any manner communicated to the short‑term guardian or to any other person. Any person other than the short‑term guardian to whom a revocation or amendment is communicated or delivered shall make all reasonable efforts to inform the short‑term guardian of that fact as promptly as possible.     (d) The appointment of a short‑term guardian or successor short‑term guardian does not affect the rights in the disabled person of any guardian other than the appointing guardian.     (e) The written instrument appointing a short‑term guardian may, but need not, be in the following form:   APPOINTMENT OF SHORT‑TERM GUARDIAN [IT IS IMPORTANT TO READ THE FOLLOWING INSTRUCTIONS:         By properly completing this form, a guardian is

appointing a short‑term guardian of the disabled person for a cumulative total of up to 60 days during any 12 month period. A separate form shall be completed each time a short‑term guardian takes over guardianship duties. The person or persons appointed as the short‑term guardian shall sign the form, but need not do so at the same time as the guardian.]

1. Guardian and Ward. I, (insert name of appointing

guardian), currently residing at (insert address of appointing guardian), am the guardian of the following disabled person: (insert name of ward).

2. Short‑term Guardian. I hereby appoint the

following person as the short‑term guardian for my ward: (insert name and address of appointed person).

3. Effective date. This appointment becomes

effective: (check one if you wish it to be applicable)

( ) On the date that I state in writing that I am no

longer either willing or able to make and carry out day‑to‑day care decisions concerning my ward.

( ) On the date that a physician familiar with my

condition certifies in writing that I am no longer willing or able to make and carry out day‑to‑day care decisions concerning my ward.

( ) On the date that I am admitted as an in‑patient

to a hospital or other health care institution.

( ) On the following date: (insert date).         ( ) Other: (insert other).         [NOTE: If this item is not completed, the

appointment is effective immediately upon the date the form is signed and dated below.]

4. Termination. This appointment shall terminate

on: (enter a date corresponding to 60 days from the current date, less the number of days within the past 12 months that any short‑term guardian has taken over guardianship duties), unless it terminates sooner as determined by the event or date I have indicated below: (check one if you wish it to be applicable)

( ) On the date that I state in writing that I am

willing and able to make and carry out day‑to‑day care decisions concerning my ward.

( ) On the date that a physician familiar with my

condition certifies in writing that I am willing and able to make and carry out day‑to‑day care decisions concerning my ward.

( ) On the date that I am discharged from the

hospital or other health care institution where I was admitted as an in‑patient, which established the effective date.

( ) On the date which is (state a number of days)

days after the effective date.

( ) Other: (insert other).         [NOTE: If this item is not completed, the

appointment will be effective until the 60th day within the past year during which time any short‑term guardian of this ward had taken over guardianship duties from the guardian, beginning on the effective date.]

5. Date and signature of appointing guardian. This

appointment is made this (insert day) day of (insert month and year).

Signed: (appointing guardian)         6. Witnesses. I saw the guardian sign this

instrument or I saw the guardian direct someone to sign this instrument for the guardian. Then I signed this instrument as a witness in the presence of the guardian. I am not appointed in this instrument to act as the short‑term guardian for the guardian's ward. (insert space for names, addresses, and signatures of 2 witnesses)

7. Acceptance of short‑term guardian. I accept this

appointment as short‑term guardian on this (insert day) day of (insert month and year).

Signed: (short‑term guardian)     (f) Each time the guardian appoints a short‑term guardian, the guardian shall: (i) provide the disabled person with the name, address, and telephone number of the short‑term guardian; (ii) advise the disabled person that he has the right to object to the appointment of the short‑term guardian by filing a petition in court; and (iii) notify the disabled person when the short‑term guardian will be taking over guardianship duties and the length of time that the short‑term guardian will be acting as guardian. (Source: P.A. 90‑796, eff. 12‑15‑98.)

(755 ILCS 5/11a‑4) (from Ch. 110 1/2, par. 11a‑4)     Sec. 11a‑4. Temporary guardian. Prior to the appointment of a guardian under this Article, pending an appeal in relation to the appointment, or pending the completion of a citation proceeding brought pursuant to Section 23‑3 of this Act, the court may appoint a temporary guardian upon a showing of the necessity therefor for the immediate welfare and protection of the alleged disabled person or his estate on such notice and subject to such conditions as the court may prescribe. In determining the necessity for temporary guardianship, the immediate welfare and protection of the alleged disabled person and his or her estate shall be of paramount concern, and the interests of the petitioner, any care provider, or any other party shall not outweigh the interests of the alleged disabled person. The temporary guardian shall have all of the powers and duties of a guardian of the person or of the estate which are specifically enumerated by court order. The court order shall state the actual harm identified by the court that necessitates temporary guardianship. The temporary guardianship shall expire within 60 days after the appointment or whenever a guardian is regularly appointed, whichever occurs first. Except pending the disposition on appeal of an adjudication of disability, no extension shall be granted. However, the ward shall have the right any time after the appointment of a temporary guardian is made to petition the court to revoke the appointment of the temporary guardian. (Source: P.A. 89‑396, eff. 8‑20‑95; 90‑250, eff. 7‑29‑97.)

    (755 ILCS 5/11a‑5)(from Ch. 110 1/2, par. 11a‑5)
    Sec. 11a‑5. Who may act as guardian.
    (a) A person is qualified to act as guardian of the person and as guardian of the estate of a disabled person if the court finds that the proposed guardian is capable of providing an active and suitable program of guardianship for the disabled person and that the proposed guardian:
        (1) has attained the age of 18 years;
        (2) is a resident of the United States;
        (3) is not of unsound mind;
        (4) is not an adjudged disabled person as defined in

this Act; and

(5) has not been convicted of a felony, unless the

court finds appointment of the person convicted of a felony to be in the disabled person's best interests, and as part of the best interest determination, the court has considered the nature of the offense, the date of offense, and the evidence of the proposed guardian's rehabilitation. No person shall be appointed who has been convicted of a felony involving harm or threat to an elderly or disabled person, including a felony sexual offense.

(b) Any public agency, or not‑for‑profit corporation found capable by the court of providing an active and suitable program of guardianship for the disabled person, taking into consideration the nature of such person's disability and the nature of such organization's services, may be appointed guardian of the person or of the estate, or both, of the disabled person. The court shall not appoint as guardian an agency which is directly providing residential services to the ward. One person or agency may be appointed guardian of the person and another person or agency appointed guardian of the estate.     (c) Any corporation qualified to accept and execute trusts in this State may be appointed guardian of the estate of a disabled person. (Source: P.A. 94‑579, eff. 8‑12‑05.)

(755 ILCS 5/11a‑6) (from Ch. 110 1/2, par. 11a‑6)     Sec. 11a‑6. Designation of Guardian.) A person, while of sound mind and memory, may designate in writing a person, corporation or public agency qualified to act under Section 11a‑5, to be appointed as guardian or as successor guardian of his person or of his estate or both, in the event he is adjudged to be a disabled person. The designation may be proved by any competent evidence, but if it is executed and attested in the same manner as a will, it shall have prima facie validity. If the court finds that the appointment of the one designated will serve the best interests and welfare of the ward, it shall make the appointment in accordance with the designation. The selection of the guardian shall be in the discretion of the court whether or not a designation is made. (Source: P.A. 81‑795.)

(755 ILCS 5/11a‑7) (from Ch. 110 1/2, par. 11a‑7)     Sec. 11a‑7. Venue.) If the alleged ward is a resident of this State, the proceeding shall be instituted in the court of the county in which he resides. If the alleged ward is not a resident of this State, the proceeding shall be instituted in the court of a county in which his real or personal estate is located. (Source: P.A. 80‑1415.)

(755 ILCS 5/11a‑8) (from Ch. 110 1/2, par. 11a‑8)     Sec. 11a‑8. Petition. The petition for adjudication of disability and for the appointment of a guardian of the estate or the person or both of an alleged disabled person must state, if known or reasonably ascertainable: (a) the relationship and interest of the petitioner to the respondent; (b) the name, date of birth, and place of residence of the respondent; (c) the reasons for the guardianship; (d) the name and post office address of the respondent's guardian, if any, or of the respondent's agent or agents appointed under the Illinois Power of Attorney Act, if any; (e) the name and post office addresses of the nearest relatives of the respondent in the following order: (1) the spouse and adult children, parents and adult brothers and sisters, if any; if none, (2) nearest adult kindred known to the petitioner; (f) the name and address of the person with whom or the facility in which the respondent is residing; (g) the approximate value of the personal and real estate; (h) the amount of the anticipated annual gross income and other receipts; (i) the name, post office address and in case of an individual, the age, relationship to the respondent and occupation of the proposed guardian. In addition, if the petition seeks the appointment of a previously appointed standby guardian as guardian of the disabled person, the petition must also state: (j) the facts concerning the standby guardian's previous appointment and (k) the date of death of the disabled person's guardian or the facts concerning the consent of the disabled person's guardian to the appointment of the standby guardian as guardian, or the willingness and ability of the disabled person's guardian to make and carry out day‑to‑day care decisions concerning the disabled person. A petition for adjudication of disability and the appointment of a guardian of the estate or the person or both of an alleged disabled person may not be dismissed or withdrawn without leave of the court. (Source: P.A. 89‑396, eff. 8‑20‑95; 90‑796, eff. 12‑15‑98.)

(755 ILCS 5/11a‑8.1)     Sec. 11a‑8.1. Petition for standby guardian of disabled person. The petition for appointment of a standby guardian of the person or the estate, or both, of a disabled person must state, if known: (a) the name, date of birth, and residence of the disabled person; (b) the names and post office addresses of the nearest relatives of the disabled person in the following order: (1) the spouse and adult children, parents and adult brothers and sisters, if any; if none, (2) nearest adult kindred known to the petitioner; (c) the name and post office address of the person having guardianship of the disabled person, and of any person or persons acting as agents of the disabled person under the Illinois Power of Attorney Act; (d) the name, post office address, and, in case of any individual, the age and occupation of the proposed standby guardian; (e) the preference of the disabled person as to the choice of standby guardian; (f) the facts concerning the consent of the disabled person's guardian to the appointment of the standby guardian, or the willingness and ability of the disabled person's guardian to make and carry out day‑to‑day care decisions concerning the disabled person; (g) the facts concerning the execution or admission to probate of the written designation of the standby guardian, if any, a copy of which shall be attached to or filed with the petition; (h) the facts concerning any guardianship court actions pending concerning the disabled person; and (i) the facts concerning the willingness of the proposed standby guardian to serve, and in the case of the Office of State Guardian and any public guardian, evidence of a written acceptance to serve signed by the State Guardian or public guardian or an authorized representative of the State Guardian or public guardian, consistent with subsection (b) of Section 11a‑3.1. (Source: P.A. 90‑796, eff. 12‑15‑98.)

(755 ILCS 5/11a‑9) (from Ch. 110 1/2, par. 11a‑9)     Sec. 11a‑9. Report.)     (a) The petition for adjudication of disability and for appointment of a guardian should be accompanied by a report which contains (1) a description of the nature and type of the respondent's disability and an assessment of how the disability impacts on the ability of the respondent to make decisions or to function independently; (2) an analysis and results of evaluations of the respondent's mental and physical condition and, where appropriate, educational condition, adaptive behavior and social skills, which have been performed within 3 months of the date of the filing of the petition; (3) an opinion as to whether guardianship is needed, the type and scope of the guardianship needed, and the reasons therefor; (4) a recommendation as to the most suitable living arrangement and, where appropriate, treatment or habilitation plan for the respondent and the reasons therefor; (5) the signatures of all persons who performed the evaluations upon which the report is based, one of whom shall be a licensed physician and a statement of the certification, license, or other credentials that qualify the evaluators who prepared the report.     (b) If for any reason no report accompanies the petition, the court shall order appropriate evaluations to be performed by a qualified person or persons and a report prepared and filed with the court at least 10 days prior to the hearing.     (c) Unless the court otherwise directs, any report prepared pursuant to this Section shall not be made part of the public record of the proceedings but shall be available to the court or an appellate court in which the proceedings are subject to review, to the respondent, the petitioner, the guardian, and their attorneys, to the respondent's guardian ad litem, and to such other persons as the court may direct. (Source: P.A. 89‑396, eff. 8‑20‑95.)

    (755 ILCS 5/11a‑10)(from Ch. 110 1/2, par. 11a‑10)
    Sec. 11a‑10. Procedures preliminary to hearing.
    (a) Upon the filing of a petition pursuant to Section 11a‑8, the court shall set a date and place for hearing to take place within 30 days. The court shall appoint a guardian ad litem to report to the court concerning the respondent's best interests consistent with the provisions of this Section, except that the appointment of a guardian ad litem shall not be required when the court determines that such appointment is not necessary for the protection of the respondent or a reasonably informed decision on the petition. If the guardian ad litem is not a licensed attorney, he or she shall be qualified, by training or experience, to work with or advocate for the developmentally disabled, mentally ill, physically disabled, the elderly, or persons disabled because of mental deterioration, depending on the type of disability that is alleged in the petition. The court may allow the guardian ad litem reasonable compensation. The guardian ad litem may consult with a person who by training or experience is qualified to work with persons with a developmental disability, persons with mental illness, or physically disabled persons, or persons disabled because of mental deterioration, depending on the type of disability that is alleged. The guardian ad litem shall personally observe the respondent prior to the hearing and shall inform him orally and in writing of the contents of the petition and of his rights under Section 11a‑11. The guardian ad litem shall also attempt to elicit the respondent's position concerning the adjudication of disability, the proposed guardian, a proposed change in residential placement, changes in care that might result from the guardianship, and other areas of inquiry deemed appropriate by the court. At or before the hearing, the guardian ad litem shall file a written report detailing his or her observations of the respondent, the responses of the respondent to any of the inquires detailed in this Section, the opinion of the guardian ad litem or other professionals with whom the guardian ad litem consulted concerning the appropriateness of guardianship, and any other material issue discovered by the guardian ad litem. The guardian ad litem shall appear at the hearing and testify as to any issues presented in his or her report.
    (b) The court (1) may appoint counsel for the respondent, if the court finds that the interests of the respondent will be best served by the appointment, and (2) shall appoint counsel upon respondent's request or if the respondent takes a position adverse to that of the guardian ad litem. The respondent shall be permitted to obtain the appointment of counsel either at the hearing or by any written or oral request communicated to the court prior to the hearing. The summons shall inform the respondent of this right to obtain appointed counsel. The court may allow counsel for the respondent reasonable compensation.
    (c) If the respondent is unable to pay the fee of the guardian ad litem or appointed counsel, or both, the court may enter an order for the petitioner to pay all such fees or such amounts as the respondent or the respondent's estate may be unable to pay. However, in cases where the Office of State Guardian is the petitioner, consistent with Section 30 of the Guardianship and Advocacy Act, where an elder abuse provider agency is the petitioner, pursuant to Section 9 of the Elder Abuse and Neglect Act, or where the Department of Human Services Office of Inspector General is the petitioner, consistent with Section 45 of the Abuse of Adults with Disabilities Intervention Act, no guardian ad litem or legal fees shall be assessed against the Office of State Guardian, the elder abuse provider agency, or the Department of Human Services Office of Inspector General.
    (d) The hearing may be held at such convenient place as the court directs, including at a facility in which the respondent resides.
    (e) Unless he is the petitioner, the respondent shall be personally served with a copy of the petition and a summons not less than 14 days before the hearing. The summons shall be printed in large, bold type and shall include the following notice: NOTICE OF RIGHTS OF RESPONDENT     You have been named as a respondent in a guardianship petition asking that you be declared a disabled person. If the court grants the petition, a guardian will be appointed for you. A copy of the guardianship petition is attached for your convenience.
The date and time of the hearing are:
The place where the hearing will occur is:
The Judge's name and phone number is:
    If a guardian is appointed for you, the guardian may be given the right to make all important personal decisions for you, such as where you may live, what medical treatment you may receive, what places you may visit, and who may visit you. A guardian may also be given the right to control and manage your money and other property, including your home, if you own one. You may lose the right to make these decisions for yourself.
    You have the following legal rights:
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