A guardian of a person with special needs has many important responsibilities, so he or she should be aware of the nature and extent of those obligations before asking a court to appoint him or her guardian. The duties of a guardian under Illinois law depend on the type of guardianship the court orders and the scope of the powers that the court grants the guardian in the guardianship order. Depending on the circumstances, a guardian’s role can be very limited by a guardianship order, or a guardian may have almost unlimited power over the individual with disabilities or the “ward.”
Understanding the Distinctions Between Plenary and Limited Guardianships
A plenary guardianship gives a guardian the full range of powers and duties available under state law. However, even when a plenary guardianship is in place, Illinois law defines certain circumstances in which a guardian must consult with the ward to determine his or her wishes before making decisions on the ward’s behalf.
On the other hand, a limited guardianship gives a guardian only some of the available powers and duties over the ward. A limited guardianship order outlines exactly what powers the guardian can exercise on behalf of the ward, and the guardian cannot go beyond those powers. As a result, the powers of a guardian in a limited guardianship often are quite a bit less than those in a plenary guardianship. A limited guardianship may be appropriate when a ward has some legal capacity to participate in making decisions about his or her life.
Guardians of the Estate and Guardians of the Person
A guardianship can be of the estate or of the person. The type of guardianship determines what powers the guardian has over the ward. A plenary guardianship can be of the estate or of the person, or both. Likewise, a limited guardianship can be of the estate or of the person, or both.
Powers of a Guardian of the Estate
Under 755 ILCS 5/11a-18, a person who is the guardian of a ward’s estate has the power to make decisions about and is responsible for the ward’s finances, business, and legal matters. Some of those powers include the following:
- Entering contracts on behalf of the ward;
- Appearing and representing the interests of the ward in legal proceedings;
- Changing or making beneficiary designations on life insurance policies, annuities, retirement plans, and investment funds;
- Changing the ward’s residence;
- Maintaining bank accounts for the estate, deposit income in those accounts, and paying the ward’s bills, taxes, or other debts from those accounts;
- Receiving and handling all financial and legal mail for the ward;
- Protecting and maintaining all property belongings to the ward, including all accounts, in the ward’s best interests;
- Applying for public benefits on behalf of the ward;
- Using the ward’s assets to care for him or her as needed; and
- Maintaining written records of all financial transactions involving the ward’s assets or property.
Despite the expansiveness of these powers, state law also places certain limitations on some types of powers. To exercise certain powers, the guardian must first obtain the court’s permission and notify any guardian ad litem appointed for the ward. For instance, court permission is required to sell any real estate that the ward owns, take out a mortgage on the ward’s property, make gifts from the ward’s estate, or distribute guardian’s fees.
Powers of a Guardian of the Person
Under 755 ILCS 5/11a-17, a guardian who has guardianship of the ward’s person has different duties than a guardianship of the ward’s estate. This type of guardianship makes the guardian responsible for all matters related to the ward’s personal care, including healthcare decisions, living arrangements, and personal needs such as haircuts, grooming, and clothing. While the guardian must work to help the ward develop as much self-reliance and independence as possible, the guardian also must ensure the provision of proper support, care, health, education, and other appropriate services for the ward.
Like with a guardianship of the estate, a guardianship of the person does not give the guardian unlimited or unchecked powers. For example, the guardian must get permission from the court before the ward can be placed in a residential facility. Likewise, if the guardian wants to file for divorce on behalf of the ward or take any action that would affect the ward’s reproductive rights, the guardian must first get permission from the court in the form of a court order.
Reporting Duties for Guardians
A guardian of the estate must file a complete inventory of the ward’s assets within 60 days of being appointed guardian. Assets include any property the ward owns, including bank accounts, real estate, vehicles, cash, investment accounts, and personal property.
A court also may require a guardian to file regular annual reports. These reports may address financial matters, health status, and/or services that the ward is receiving.
Frequently Asked Questions
How does the court decide whether to establish a plenary or limited guardianship?
The court evaluates the ward’s abilities, medical evidence, and testimony from family or professionals to determine the least restrictive form of guardianship. If the ward can make some decisions independently, the court may prefer a limited guardianship to preserve autonomy. A plenary guardianship is usually ordered only when the ward cannot reliably manage or contribute to personal or financial decisions on his or her own.
What safeguards exist to protect the ward from misuse of guardianship powers?
Illinois law requires guardians to act in the ward’s best interests. It often mandates court approval for major decisions, such as selling property or placing the ward in a residential facility. Guardians must also submit inventories and annual reports, which allow the court to monitor financial and personal care decisions. These safeguards help ensure accountability and prevent abuse of authority.
Can guardianship arrangements be modified after they are established?
Yes. Guardianship orders are not necessarily permanent. If the ward’s condition improves or circumstances change, the court can reduce the guardian’s powers, terminate the guardianship, or appoint a successor guardian. Interested parties, such as family members or the ward themselves, may petition the court to review and adjust the arrangement.
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