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More Insights into Guardianship

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As a geriatric care manager, I work with court-appointed guardians.  You may recall from a blog last December, Caregiver or Guardian, we talked about guardianship.  I had the really good fortune to speak with John Wank, President of the Illinois Guardianship Association.  Mr. Wank also is General Counsel of the Illinois Guardianship and Advocacy Commission, a state agency.  He answered a lot of the questions I have heard from our clients.  This is going to take a few postings to get through them all.  Here are some questions and his answers for a start.

What is a guardian?

A guardian is a person appointed by a court to make personal or financial decisions for another person who has been found by the court to be incapacitated (a disabled person, under the Illinois definition) and unable to make decisions.  All guardianship in Illinois is governed by the adult guardianship provisions of the Probate Act of 1975, 755 ILCS 5/11a-1, et. seq. Other laws also apply.

Does the individual get to choose his/her guardian?

An individual may state a preference, but the final decision as to the choice of a guardian is made by the court. Under Section 11-a-6, “(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.” Illinois law creates no preferences or priorities as to whom is appointed guardian for a person with disability, other than the requirement that the court give due consideration to any preference of the respondent. Section 11a 12(d). The criterion used in selecting a guardian is the prospective guardian’s capability of providing an active and suitable program of guardianship for the ward. Section 11a 5(a).

Can the individual rescind the guardianship?

Only a court may rescind a legal guardianship. Guardianship is terminated when a person under guardianship (a ward) is restored to legal competency. Section 11a-20. Otherwise, the guardianship continues until the death of the ward. The court may also change the terms of guardianship, making it more (plenary guardianship) or less (limited guardianship) encompassing, or by appointing another person as guardian after the removal or resignation of a guardian. Section 11a-12 defines plenary and limited guardianship; Section 5/23-1 sets out procedures for removal and resignation of guardians.

We will pick up with more of Mr. Wank’s Q and A in the next posting. 

Charlotte Bishop is a Geriatric Care Manager and founder of Creative Case Management; please e-mail your questions to Charlotte Bishop.

Copyright ©2011 Charlotte Bishop 

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