© By Jeffrey C. Blumenthal. All Rights Reserved.

    The U.S. Census Bureau has projected that the population aged 65 and older will more than double between 2012 and 2060, from 43.1 million to 92 million people[1]. As the population ages, the number of adults with dementia and other mental and physical infirmities that leave those adults unable to perform daily living activities is likely to skyrocket[2]. Consequently, the number of persons who will need a guardian to help them function should also rapidly rise. There are a number of issues that are regularly litigated in guardianship disputes or are likely to be litigated in the future. This memorandum addresses a number of those issues.

I.       The Purpose of a Guardianship for a Disabled Adult

    Article XI a of the Probate Act governs proceedings for the appointment of a guardian for a disabled adult in Illinois (755 ILCS 5/11a-1 et. seq.). Section 3(b) of Article XI (755 ILCS 11a-3(b)) provides that the purpose of a guardianship is “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.” Mabry v. Roberts, (In Re Mabry), 281 Ill. App. 3d 76, 87 (1^st Dist. 1995).  Section 3(b) further provides that “[g]uardianship shall be ordered only to the extent necessitated by the individual’s actual mental, physical and adaptive limitations”. [3] Much of current guardianship law is informed by the Section 3(b)’s directives.[4]

         As the appellate court reasoned in In re Estate of Mackey, 85 Ill. App. 3d 235, 239 (3^rd Dist. 1980), the guardianship “provisions envisage and direct a careful look into the extent and nature of any disability and a tailoring of guardianship to the requirements and abilities of the individual, with the purpose of encouraging self-reliance and independence. That goal permeates a number of the provisions of the new Probate Act of 1975 in this area.” Accord: In re Estate of Fallos, 386 Ill. App. 3d 831,839(1^st Dist. 2008); See: In re Estate of Bennett, 122 Ill App. 3d 756 762 (2^nd Dist. 1984). See also: e.g., 755 ILCS 5/11a-17 (“The guardian shall assist the ward in the development of maximum self-reliance and independence.”)

      In re Estate of Bennett, 123 Ill App. 3d 756 (2^nd Dist. 1984), illustrates the trial and appellate court’s “careful” consideration and weighing of the evidence in applying Section 3(b)’s mandate of tailoring the guardianship to the needs of the disabled adult. In Bennett, supra, 123 Ill App. 3d at 758, the respondent suffered a stroke in 1979 and his wife filed a petition to have herself appointed as his plenary guardian in spring, 1981. Following respondent’s release from the hospital after his stroke, the husband went to live with his mother where he was being cared for by both his mother and sister for more than a year before the hearing on the guardianship petition (Id). In the fall of 1981, the mother and sister filed a cross-petition seeking an order that one or both of them be appointed as a limited guardian(s) for the respondent instead of the wife (Id).

    At the guardianship hearing, the wife, who had not had “any close contact with [her husband] in over a year”, testified as did a psychiatrist the wife had retained (Id. at 759). The wife and her expert testified that respondent had limited “physical and mental capabilities” and was in need of a plenary guardian (Id). However, there was also testimony from the respondent, his brother-in-law and his sister and mother, who lived with him during the year before the hearing (Id). This testimony indicated that, while respondent experienced “some confusion” he was generally alert, aware of his surroundings and his finances (Id.) He could feed, bathe and shave himself and could walk with the aid of a walker (Id). 

     In addition there was testimony from two other psychiatrists and a psychologist that while the respondent had some “residual” effects from the stroke, including slurred speech, impaired vision and difficulty walking, “he was alert and coherent” (Id). While the respondent had “a deficiency in conceptual abilities” that could result in gaps in his reasoning process, these experts testified that the respondent could manage his estate and financial affairs” with assistance and support from a limited guardian (123 Ill. App. 3d at 760). The evidence indicated that the respondent was content living at his mother’s home and that his health had improved there because of the “constant” care of his mother and sister (Id at 761).  Based on the evidence, the trial court rejected the wife’s request for the appointment of a plenary guardian and instead, appointed respondent’s sister and mother as co-limited guardians of his estate and person. (Id at 760 and 761).

    In affirming the trial court’s ruling, the appellate court reasoned at 123 Ill. App. 3d at 762:

The order determining that the respondent needs a limited guardianship… recognizes that the respondent can be disabled and lack some but not all of the capacity as specified in section 11a—3. (Citation omitted). The respondent requires limited assistance due to his speech impediment and the physical difficulty he encounters with writing and walking. He also has lapses of memory, but when he is provided with the necessary information, he is capable of reaching a responsible decision. The order conformed with the evidence adduced at the hearing. Although the respondent is a disabled person, he is not incapable of knowing what he wants to do. He merely needs assistance. The order is in keeping with the intent of the statute. (Citing 755 ILCS 11a-3(b)).

II.        Who is a “disabled person” within the meaning of

Guardianship Law

   The first issue in many guardianship disputes is whether the individual alleged to need a guardian is “disabled” within the statutory meaning. “Disabled person” is defined in section 11a- 2 (755 ILCS 5/11a-2) and “Development disability” is defined in section 11a-1 (755 ILCS 5/11a-1) of Article XI a.  A review of section 11a- 2 and decisions interpreting that section and predecessor provisions indicate that essentially any mental or physical condition that leaves a person 18 years or older unable to fully manage his or her person or estate can be sufficient for that person to be deemed “disabled” within the meaning of the guardianship provisions. 

    In Karbin v. Karbin, 2012 Ill. Lexis 1011*p.20, 977 N.E. 2d 154 (2012), the Supreme Court held that: “[Article 11a of] [t]he [Probate] Act defines a ‘disabled person’ to include anyone over the age of 18 who ‘is not fully able to manage his person or estate’ because of ‘mental deterioration,’ ‘physical incapacity, ’mental illness,’ or ‘developmental disability.’”(Quoting from the language of 755 ILCS 5/11a-2(a) and (b)).  Similarly, in In re Estate of Malloy, 96 Ill. App. 3d 1020, 1028 (1^st Dist. 1990), the Court stated “a disabled person is … defined by section 11a—2 of the Act, as a person who … for certain mental and physical causes … is not fully able to manage his person or estate.” As these cases suggest, the focus of the “disabled person” definition is not on the alleged mental or physical condition per se, but rather on the disability’s effect in rendering an individual unable to fully manage his or her personal or financial affairs.

     For example, in Estate of Galvin, supra, 112 Ill. App. 3d 677, 678-679(1^st Dist. 1983), the evidence showed that respondent had both physical limitations, as a result of a series of strokes and other medical conditions, as well as some mental fantasies/delusions. For example, respondent testified, on adverse examination, that “he invented the snow-mobile, at one time he had a pet-black widow spider and he could produce fire by pointing his finger.” However, the respondent also correctly testified that he owned a building, took care of his finances, could shop for himself, and could walk with the aid of a walker (Id at 679). The respondent further testified at 112 Ill App. 3d 679 that “he was able to take care of himself and did not want a guardian.” Based on the totality of the evidence, the trial court stated at 112 Ill. App. 3d 679-680: “There is no way in God’s world that I am going to adjudicate him a disabled person. He is physically suffering from some disability. … He is eccentric… but there is no way I am going to adjudicate him in need of a guardian…. He lives a bizarre, strange life. I might not want to do it, but unless you can make an offer of proof that is going to show me that he does not understand the things he is doing—, he understands.”

   The appellate court affirmed the trial court’s ruling denying the guardianship petition, notwithstanding that is was “clear that respondent suffers from some physical disability [brought on by a series of strokes, heart, cerebral, and arthritic conditions] and has some mental peculiarities.” (112 Ill. App. 3d at 681). However, in balancing the totality of the testimony, the appellate court reasoned at 112 Ill. App. 3d 682: “we cannot say the determination of the trial judge that respondent was not unable to manage his person and estate is contrary to the manifest weight of the evidence.”

   While the current guardianship statutory framework is more refined and restrictive than prior law, the prior statutes also focused on whether a mental or physical condition rendered an individual incapable of managing his person or estate. This is highlighted by earlier case law interpreting the prior statutory framework under which individuals who are now called “guardians” were previously designated as “conservators” and “disabled persons” were referred to as “incompetents”[5]. In McDonald v. LaSalle Nat’l Bank, 11 Ill. 2d 122, 124 (1957), the Supreme Court held: “The test [determining incompetency] … is … whether the person is capable of managing his own affairs.” In Loss v. Loss, 25 Ill. 2d 515, 517 (1962), the Supreme Court stated: “before physical incapacity is sufficient to permit … adjudication [of incompetency] and appointment [of a conservator], it must be such as to render the person ‘incapable of managing his person or estate.’” Likewise, in In re Estate of Stevenson, 44 Ill. 2d 525, 531 (1970), in rejecting a contention that the predecessor statute was unconstitutionally “vague, indefinite and uncertain”, the Supreme Court reasoned that: “The justification for the appointment of a conservator is founded primarily on the incapability of managing one’s person or estate and not on the cause of that incapability.”

    Finally, in In Re Estate of McPeak, 53 Ill. App. 3d 133, 136 (5^th Dist. 1977), the appellate court reversed the trial court’s order appointing a “conservator” because “the record was barren” of any credible facts, as opposed to unsupported opinion, showing that the respondent was incapable of managing her person or estate. McPeak, surpa, 53 Ill. App. 3d at 134, involved an 81 year old, whose “health was described as poor.” Petitioner, who one of the respondent’s two sons, and petitioner’s witnesses testified that the respondent was “forgetful, confused and repetitive” (Id). These witnesses further opined that respondent’s “mind was deteriorating and that she was not capable of taking care of herself.” (Id). However, the facts indicated that, a month before the guardianship petition had been filed, the respondent had voluntarily entered a nursing home and had given her other, non-petitioning son a power of attorney over her estate (Id). At the conservatorship hearing, five nursing home employees testified that the respondent was “mentally alert”, “kept herself clean and has insisted on keeping her surroundings neat and orderly.” (Id).

      In rejecting the claim that respondent’s poor health and physical limitations, which had prevented her from attending the conservatorship hearing, justified the appointment of a conservator, the McPeak Court stated, at 53 Ill. App. 3d 136, that: “to simply establish certain disabilities is alone insufficient to support the determination of incompetency, the evidence must also show the respondent’s incapability of managing her person or estate.” The appellate court found that the evidence of respondent’s actual conduct showed that she could make responsible decisions regarding her person and estate. As the McPeak Court reasoned at 53 Ill. App. 3d 156: “by purposefully entering a nursing home and executing [a] power of attorney in her son, [respondent] showed herself to be capable to protect herself and her property by intelligently and responsibly exercising her rights and recognizing her limitations.”

III. Proof that a person is “disabled” must be by clear and 

    convincing evidence and the necessity of medical evidence

     Section 11a-3 expressly requires that the proof that the person is “disabled” must be established by clear and convincing evidence. Karbin v Karbin, supra, 2012 Ill. Lexis 1011*p. 20, 977 N.E. 2d 154 (2012).[6] The Courts have further “recognize[d] that the adjudication of disability is a uniquely factual determination ….”  In Re Estate of Hickman, 208 Ill. App. 3d 265, 276 (4^th Dist. 1991); Accord; Barr v. Horwitz, 142 Ill. App. 3d 428, 433 (1^st Dist. 1986); Estate of Galvin v. Galvin, 112 Ill. App. 3d 677, 681-682 (1^st Dist. 1988).  See also: In re Estate of Silverman, 257 Ill. App. 3d 162, 168-169 (1^st Dist. 1994) (“Whether and to what extent a person needs a guardian is a factual determination…”). The import of the witnesses’ presentation in a guardianship matter is highlighted by the court’s statement in Estate of Galvin, supra, that: “We cannot envision an instance in which the observation of the witnesses, particularly the alleged incompetent, is more critical to the outcome of proceedings.” In Galvin, supra, 112 Ill. App. 3d at 679-680, it was the trial court’s observation of the respondent on the witness stand and the respondent’s testimony that lead the trial court to rule that the respondent knew what he was doing and did not need a guardian.

    Section 11a-9(a) (755 ILCS 5/11a-9(a)) provides that the petition for adjudication of disability and for appointment of a guardian should be accompanied by a report which “(1) describes the nature and type of the respondent’s disability; (2) evaluates the respondent’s mental and physical condition, and, if appropriate, his or her educational level, adaptive behavior and social skills; (3) states an opinion as to whether guardianship is needed; (4) recommends the most suitable living arrangement for the respondent or , if appropriate, a treatment or habilitation plan; and (5) contains the signatures of all those who performed the evaluation, at least one of whom must be a licensed physician.” In re Estate of Silverman, supra, 257 Ill. App. 3d at 169 (Paraphrasing from the statute’s language).

    While section 11a-9(b) expressly provides that: “[i]f … no report accompanies the petition, the court shall order appropriate evaluations… and a report to be prepared and filed …”, courts have ruled that such an order is not required where the respondent objects to the guardianship petition and submits a statutorily sufficient report that guardianship is unnecessary. In re Estate of Silverman, 257 Ill. 2d 162 (1^st Dist. 1983), a sibling filed a petition for guardianship alleging that his brother was being abused and subject to the undue influence of his sister-in-laws. The guardianship petition was not supported by a physician’s report. On the day that the petitioner filed a Motion to Compel a Supreme Court Rule 215 medical examination of his brother, the respondent filed a motion to dismiss the guardianship petition supported by both a statutorily sufficient report in the form of an affidavit from his long-time physician that, among other things, he was “mentally competent and able to make personal and financial decisions on his own.” Subsequently, the trial court denied the petitioner’s motion to compel a medical examination and granted the respondent’s motion to dismiss the guardianship petition. In affirming the trial court’s ruling that, under the circumstances, the trial court was not required to order a medical examination under Section 11a-9(b), the appellate court reasoned at 257 Ill. App.3d 171 that:

       We do not believe that the code provision requiring courts to order

       evaluations when petitions lack medical reports mandates such

       orders when respondents come forward with statutorily sufficient

       reports. The clear purpose of the provision is to insure that the court

       adjudicates disability based upon a reliable evaluation of the

       subject’s physical and mental status.

     In Williams v. Estate of Cole, 393 Ill. App. 3d 771,779 (1^st Dist. 2009), the trial court also granted a respondent mother’s motion to dismiss her daughter’s petition for guardianship based on the medical reports of her doctor and a psychiatrist that respondent had no cognitive disabilities and was capable of making her own personal and financial decisions that were submitted in connection with the motion to dismiss.     In affirming the ruling and rejecting the petitioner’s contention that the trial court should have granted her motion to order an independent medical examination, the appellate court, relying on the reasoning of the Silverman Court, stated: “Such a report is not necessary… where respondents come forward with ‘statutorily sufficient reports’”

    Similarly, in Hanley v. Hanley, 2013 Ill. App. Lexis 599, 995 N.E. 2d 596 (3^rd Dist. 2013) both the trial and appellate court rejected the petitioner’s contention that under Section 11a-9 (b), the court was required to order evaluations of his respondent father, where no report had been submitted with the son’s guardianship petition. In so ruling the Court relied on the reasoning from both In re Estate of Silverman, supra, and Williams v. Estate of Cole, supra. Accordingly, the Hanley Court granted the father’s Section 619 motion to dismiss the guardianship petition based on the medical reports and doctors’ affidavits, which the father had submitted from his treating neurologist and physician. 2013 Ill. App. Lexis 599 *pp. 16, 20, holding that the son had failed to rebut the affirmative matter presented his father. The Court reasoned that in light of the statutorily sufficient medical reports submitted by the respondent, he should not be subjected to “further unwarranted mental and physical evaluations”. Id. p. 67.

   What these cases indicate is that a guardianship petition may not be able to get beyond the pleading stage where a medical report is not submitted with the guardianship petition and the putative disabled person both objects to the petition and files a physician’s report that the respondent is not disabled within the meaning of the Probate Act and a guardianship is unnecessary.

IV. Additional Findings Required for Appointment of A Guardian

      Even where a person meets the statutory definition of being a “disabled person”, before a guardian for the person is appointed, section 11a-3(1) and/or (2) (735 ILCS 5/11a-3(1) or (2)) respectively require a showing by “clear and convincing evidence that “the disabled person lacks [the] capacity to [either]… make or communicate responsible decisions concerning the care of his person” and/ or… “is unable to manage his estate or financial affairs.” 

     As the court pointed out in In re Estate of Mackey, 85 Ill. App. 3d 235, 238 (3^rd Dist. 1980), even though an individual “may be a disabled person, in the statutory sense of not being fully able to manage his person, a guardian is not therefore permissible or appropriate if that person is capable of making and communicating responsible decisions concerning the care of his person. … Similarly, a person might be a disabled person but nevertheless not be in need of a guardian over his estate, because with help from others he is able to direct and manage his affairs and estate”. Accord: In re Estate of Galvin, 112 Ill. App. 3d 677, 681 (1^st Dist. 1983) See also: In re Estate of Hickman, 208 Ill. App. 3d 265, 276 (4^th Dist.1991).

     In re Estate of Fallos, 386 Ill. App. 831(4^th Dist. 2008) involved an individual who had been left partially paralyzed and wheel-chair bound as a result of a serious automobile accident. Years after a plenary guardian had been appointed, the disabled person sought to terminate the plenary guardianship, which the trial court did not do. In reversing the trial court’s ruling, the appellate court reasoned at 386 Ill. App. 3d 839 that: “Plenary guardianship is not appropriate where the respondent is capable of ‘intelligently direct[ing] others to perform tasks for him.” McPeak, 53 Ill. App. 3d at 136…. A person could be completely paralyzed and in need of 24-hour care over his person, yet, if he could intelligently direct others concerning the care of his person, plenary guardianship would not be appropriate.” (Citing to both In re Estate of Mackey, supra, and In re Estate of McPeak, supra). In Fallos, even though the ward could not wash, feed, or move himself, he was able to make and communicate responsible decisions concerning his personal care, and therefore, was not in need of a plenary guardian. In rendering its decision the Fallos Court specifically referred at 386 Ill. App. 3d 840 to 11a-3(a)(1)’s  “relatively high standard to appoint a guardian” by requiring “that the ward’s inability to make or communicate decisions regarding the care of his person … be proven by ‘clear and convincing’ evidence….”

V.    Is a Plenary Guardianship Required or Will a More Limited

         Guardianship of the Person and/or Estate Suffice

      As discussed in Section I of this memorandum, Section 11a- 3(b) of the Probate Act expressly provides that: “Guardianships 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 the maximum self-reliance and independence. Guardianship shall only be ordered to the extent necessitated by the individual’s actual mental, physical and adaptive limitations.”   As also previously stated, under current guardianship law, a guardianship is supposed to be tailored to the needs of the disabled adult.  Pursuant to 755 ILCS 5/11a-12, entitled “Order of Appointment” and pertinent case law, a plenary guardianship may only be ordered under section 11a-12(b) where an individual is found to be “totally without capacity.” Where an individual is found “to lack some but not all … capacity…, and if the court finds that guardianship is necessary for the protection of the disabled person, his or her estate, or both, the court [is supposed to] appoint a limited guardian for the respondent’s person or estate or both,” as appropriate under the circumstances. (755 ILCS 5/11a-12(b)).See: Marby v. Roberts, 281 Ill. App. 3d 76, 87 (4^th Dist. 1995)

     The care which courts exercise in setting the scope of a guardianship is indicated in In re Estate of Barr, 142 Ill. App. 3d 428, 434 (1^st Dist. 1986) where the trial court’s order for appointment of a plenary guardian was reversed. In Estate of Barr, supra, the appellate court determined that while the respondent “has some mental peculiarities and he has selected a life style that would easily be described as eccentric,” the appellate court could not say that he was “unable to manage his person.” Accordingly, the appellate court remanded with instructions to appoint a limited guardian of the estate, restricted to managing the respondent’s share of his father’s estate.

    Similarly, in In re Estate of Fallos, 386 Ill. App. 3d 831,839 (4^th Dist. 2008), the appellate court reversed an order appointing a plenary guardian where a physically disabled adult was not totally without capacity as is required for the appointment of a plenary guardian under section 11a-3. In so ruling the court cited to In re Estate of Bennett, 122 Ill. App. 3d 756, 671-672 (2^nd Dist. 1984) where an individual had physical limitations but was not incapable of knowing what he wants to do”, and merely needed assistance in caring out his desires. Accordingly, the Bennett Court determined that a limited guardianship was more appropriate than a plenary guardianship, and furthered the statutory purposes of providing the least restrictive guardianship allowed under the circumstances. In contrast to the above cases, in In re Estate of Hickman, 208 Ill. App. 3d 265,278 (4^th Dist. 1991), the appellate court reversed the trial court’s ruling which held that respondent only needed a guardian for her estate. Based on evidence that respondent suffered from “impaired memory”, was “prone to confusion and disorientation,” and was “unable to make [appropriate] personal grooming decisions,” the appellate court remanded for the appointment of a guardian of the person, as well as for the estate.

VI.       Issues with respect to Guardianships for a Disabled

   Adult’s Person

    Clear and convincing evidence that a mental or physical condition has rendered an individual unable to make or communicate responsible decisions regarding his or her personal care must be shown before a personal guardian will be appointed. The fact that a person has chosen an “eccentric” or peculiar life-style is not a basis for appointing a personal guardian. Estate of Galvin, supra, and Estate of Barr, supra.  On the other hand, a personal guardian was appointed for an “elderly woman with a heart condition who wears a pacemaker and must take medication regularly”, based on evidence that she suffer[red] from an impaired memory”, was “prone to confusion and disorientation” and was unable to make appropriate grooming decisions. In re Estate of Hickman, 208 Ill. App. 3d 265,276 (4^th Dist. 1991).

     Section 11a-17, entitled “Duties of personal guardian (755 ILCS 5/11a-17),” provides that the personal guardian has such duties as the court orders and is generally charged with custody of the ward and making provision for the ward’s personal needs, including “support, care, comfort, health, education and maintenance.” In the recent case of Karbin v. Karbin, 2012 Ill. Lexis 1011* pp. 32-33, 977 N.E. 2d 154(2012), in holding that a personal guardian had the authority to institute a marital dissolution action on a ward’s behalf, the Illinois Supreme Court ruled that a guardian is imbued with such powers as may be implied from the provisions of the guardianship statutes. In People v. Kenya C. (In re K.C.), 323 Ill. App. 3d 839, 849 (1^st Dist. 2001), the appellate court held that: “The decision making authority of a plenary guardian of the person under section 11a-17 is exceedingly broad.” Similarly, in In re Estate of D.W., 134 Ill. App. 3d 788, 791(1^st Dist. 1985), the Court held that section 11a—17 of the Probate Act of 1975 vests a guardian with broad authority to act in the best interest of the ward”, including the authority to authorize an abortion for the ward. Thus, In Estate of D.W., supra, the appellate court reversed the trial court’s order denying a mother’s/guardian’s request to consent to an abortion on behalf of her severely mental handicapped adult daughter/ward.

    The personal guardian’s authority extends to control over who has visitation with the ward. Struck v. Cook County Public Guardian, 387 Ill. App. 3d 867 (1^st Dist. 2008). In Struck, supra, 387 Ill. App. 3d at 871, the Public Guardian, who was the plenary guardian of the ward, had restricted visitation between the ward and her adult son, who “had a history of agitating his mother and interfering with the Public Guardian’s care plan for ‘the ward’.” Subsequently, the trial court entered a series of orders denying the son’s motions for visitation with his mother. Thereafter, the parties entered into an agreed order allowing the son supervised visitation with his mother at her nursing home, provided he not speak to with her “about her treatment plan or medication if it causes her distress” and “about leaving the nursing home.” Id. at 873. The son violated the agreed visitation order and the court entered another order barring visitation, which order the son appealed. The appellate court held at 387 Ill. App. 3d 876 that “we find no authority in the Probate Act providing [the son] with standing to assert a right to visit with [his adjudicated, disabled mother] and to challenge the guardian’s decisions on this point. As the Court further stated: “Article 11a does not contain any provision providing that relatives can request visitation or other matters concerning the ward.”

     Notwithstanding the broad powers with which a personal guardian is imbued, there are limitations on those powers. For example, 11a-17(c), expressly provides that where health care decisions of a ward are covered by an existing health-care power of attorney, the agent who holds the power has the authority to make those health-care decisions, unless a court enters an order directing the personal guardian to so act.

 Under section 11a-17, a personal guardian does not have authority to involuntarily commit his ward to a mental health facility; and any involuntary commitment must adhere to the procedures specified in the Mental Health and Development Disabilities Code. In re Gardiner, 121 Ill. App. 3^rd 7, 10 (4^th Dist. 1984); Accord: Muellner v. Blessing Hosp., 335 Ill. App. 3d 1079 (4^th Dist. 2002).

     In Muellner, supra, the trial court’s order provided that the State Public Guardian could place the ward, who allegedly suffered from chronic paranoid schizophrenia with delusions, in a skilled-care nursing facility if the guardian determined that a less restrictive alternative would cause the ward substantial harm. The State Public Guardian authorized the placement of the ward in a nursing home’s behavioral unit. The ward appealed on the basis that, under chapter III of the Illinois Mental Health Code (the “Code”— 405 ILCS 5/3-100 et. seq.), here placement in the nursing home’s behavioral unit could not be made without first proceeding with her involuntary commitment under the Code. The appellate court agreed and reversed the trial court’s order allowing for the questioned placement. In so ruling, the appellate court determined that the subject facility could be deemed “a mental health facility” under the Code (Id. at 1084). The Court further held, at 335 Ill. App. 3d at 1083, that under “Section 3-200(a) of the Mental Health Code (citation omitted) … ‘[a] person may be admitted as an inpatient to a mental health facility for treatment of mental illness only as provided in’ chapter III of the Mental Health Code.”

    Additionally, unless there has been compliance with the requirements of the Health Care Surrogate Act (the “HCSA”, 755 ILCS 40/1 et. seq.), a personal guardian does not have authority to forego life sustaining treatment for a disabled person who does not have a living will or health care power of attorney so providing.  Lower v. Murphy (In re Austwick), 275 Ill. App. 3d 665, 668 (1^st Dist. 1995). The HCSA presumes that every individual has decision making capacity (Id). Under the HCSA, in order for the guardian to forego life sustaining medical treatment for his ward, the disabled person’s attending doctor must make a written determination that the subject patient/disabled person lacks “decisional capacity” and has a qualifying condition as defined by the Act (Id).(See also? 755 ILCS 40/20 (b-5)(1)). A “qualifying condition” which is defined in the HCSA as being a “terminal condition”, “permanent unconsciousness” or an “irreversible condition” certified in the patient’s medical records by the attending physician and concurred in by at least one other physician. (Id). (See also: 755 ILCS 40/10)[7].

     In In re Austwick, supra, 275 Ill. App. 3d 669, the court determined that an adjudication that a person was “disabled” under the Guardianship Act, was not tantamount to a determination that a patient lacked “decisional capacity” as that term is defined in the HCSA[8]. The Austwick Court affirmed the trial court’s ruling terminating a Do Not Resuscitate Order approved by a personal guardian because there was no proof of a written determination by the ward’s attending that she lacked decisional capacity as required by the HCSA (Id at 669-670). Nor was there a written finding in the ward’s medical file from her attending physician certifying that she had a “qualifying condition,”, let alone a concurrence in such determination by another physician, both of which are also required under the Act where a guardian seeks to forego life sustaining treatment (Id at 670). The Austwick Court ruled because there had not been compliance with the requirements of the HCSA, the DNR order that was entered at the direction of the guardian was defective.

     Because personal guardians are fiduciaries of their ward (In re Swieckicki, 106 Ill. 2d 111, 118 (1985), wherever the law is unclear or a guardian’s decision could be deemed controversial, the guardian can and should seek court approval before taking action so as avoid possible personal liability. “[O]nce a person is adjudicated disabled, that person remains under the jurisdiction of the court, even when a plenary guardian of the person has been appointed. Struck v. Cook County Public Guardian, 387 Ill. App. 3d 867, 877 (1^st Dist. 2008). Moreover, section 11a-17 expressly provides that the guardian acts “under the direction” of the court.

   Section 11a-17(e) “sets up a dual standard [of decision making] where guardians of disabled adults must make decisions for their wards…” In re Estate of K.E.G., 382 Ill. App. 3d 401,418 (1^st Dist. 2008).

  First, if possible, the guardian is to apply the “substituted judgment” standard of decision in making a personal decision for the ward. Under this standard, the “guardian must make decisions on behalf of the ward that conform “’as closely as possible to what the ward, if competent, would have done or intended under the circumstances.’” Struck v. Cook County Public Guardian, 387 Ill. App. 3d 867,875 (1^st Dist. 2008) quoting In re Mark W., 228 Ill. 2d 365, 374 (2008) quoting 755 ILCS 11a-17(e); See also: Mabry v. Roberts (In re Mabry), 281 Ill App. 3d 76, 87(4^th Dist. 1996). In other words, “the guardian is to attempt to discern what the ward would have wished is she were competent, and then substitute that judgment for their own.” In re Estate of K.E.G., 322 Ill. App. 3d 401, 418 (1^st Dist. 2008) citing to In re Estate of Greenspan, 137 Ill. 2d 1 (1990). “If there is clear and convincing evidence to demonstrate the course of action that the ward would have taken if competent, then those wishes take precedence over any best interest analysis.” Estate of K.E..G. supra, 322 Ill App. 3d at 418.

      However, “[i]f the preferences of the ward are unknown and remain unknown after reasonable efforts to discern them, decisions shall be made on the basis of the ward’s best interest as determined by the guardian. Struck, supra, 387 Ill. App. 3d at 875. Citing In re Estate of K.E.J., 322 Ill. App. 3d 401, 417-418 (1^st Dist. 2008) citing 755 ILCS 11a-17(e); See also: Mabry, supra, 281 Ill App. 3d at 87. While section 11a-17(e) provides criteria the guardian is to consider in making personal decisions for the ward under the “best interest” standard, in Struck v. Cook County Public Guardian, the court stated at 387 Ill. App. 3d 875 that: “the guardian is to consider only the ward’s best interest, and not the interests of the ward’s family, of society, or of the guardian himself”.

VII.         Issues with respect to Guardianships for a Disabled

                Adult’s Estate

        Clear and convincing evidence that a mental or physical condition has rendered an individual “unable to manage his estate or financial affairs” must be proffered before a guardian of a disabled’s estate may be appointed. 755 ILCS 5/11-a 3(a) (2); Mabry v Roberts (In re Mabry), 281 Ill. App. 3d 76, 88(1995). The estate guardian has broad powers under 11a-18, including “the care, management and investment of the estate”; and the estate guardian “shall manage the estate frugally and shall apply the income and principal…, so far as necessary for the comfort and suitable support and education of the ward, his minor and adult dependent children, and persons related by blood or marriage who are dependent… upon… him”. (Id.) See also: Mabry v. Roberts, 281 Ill App. 3d at 88. Upon petition of the guardian, the Court may authorize the estate guardian to run the ward’s business and “perform the ward’s contracts, including execution and delivery of legal instruments.” Mabry, supra, see also 755 ILCS 5/11a-18 (b.)  With court permission, the guardian may also enter into contracts for the ward (11a-18 (a-5) (5)) and unless the court appoints someone else, it is the estate guardian’s responsibility to represent the ward in all litigation (11a-18(c), Mabry, supra, 281 Ill. App. at 82.

     Among a host of specified broad powers, under 11a-18 (a-5), with court approval, the estate guardian may seek authorization to make gifts of income or principal for the ward, convey, release or disclaim contingent and expectant interests in property, powers as a trustee or personal representative, or as a donee of a power of appointment. “In ascertaining and carrying out the ward’s wishes the court may consider, but is not limited to, minimization of State or federal income taxes; and providing gifts to charities, relatives, and friends that would be likely recipients of donations from the ward”. (755 ILCS 5/11a-18(a-5)). In Zagorski v. Kaleta (In re Estate of Michalak), 404 Ill. App. 3d 75, 86 (1^st Dist. 2010) appeal denied 239 Ill. 2d 554 (2011), the appellate court held that: “[t]he trial court had the authority, pursuant to 11a-18(a-5), and particularly subsection 11a-18(a-5)11, to grant … the plenary guardian… the power to amend the terms of the trust…”

      Accordingly, the Zagorski appellate court affirmed the probate court’s order allowing the plenary (estate) guardian of a disabled adult to amend the ward’s revocable trust to both remove and replace the designated successor trustees, the Kaletas, who were former neighbors of the disabled adult and had both assisted and visited with her over the years, with the plenary guardian, a niece of the ward,  Zagorski, “who had limited contact with [the ward] over the years” (404 Ill. App. 3d at 97), and to remove and replace the neighbors, who were the remainder beneficiaries of the trust, with the niece guardian as the remainder beneficiary of the ward’s trust.

    The Zagorski appellate court approved of the trial’s courts order amending the ward Michalak’s revocable trust on the estate guardian’s motion, despite the fact that: (1) section 11a-18-(d) expressly provides, in pertinent part, that “[a] guardian of the estate shall have no authority to revoke a trust this is revocable by the ward”; and (2) section 11a-18   (a-5) 11, which arguably limits the right of a guardian to “modify[] by means of codicil or trust amendment the terms of the ward’s will or any revocable trust created by the ward, as the court may consider advisable in light of changes in applicable tax laws.”

    The Zagorski appellate court reasoned, at 404 Ill App. 3d 84-86, that when the limitation in section 11a-18 (a-5) 11 was read in the context of the entire 11a-18 (a-5) subsection, it should not be construed as restricting the probate court’s right to  approve a guardian’s proposed amendment to a ward’s trust. The decision greatly expands the guardian’s power over a ward’s estate plan and is intended to prevent abuse from those who would exploit a disabled person. However, the decision raises serious questions, as it may give an estate guardian the power to override and thwart a ward’s donative intentions and testamentary plan. This concern is heightened because, in an area where most “dispositive” facts must be proven by “clear and convincing” evidence, the Zagorski court held, at 404 Ill. App. 3d 96, that the guardian need only prove its factual basis for amending a revocable trust (and presumably a will) by the lesser “preponderance of the evidence” standard[9]. Given that disabled adults are vulnerable and predisposed to outside (undue) influence and suggestion, a higher evidentiary standard might be expected before a guardian is authorized to modify trust or will provisions.

           In  Zagorski, the court credited the guardian and guardian ad litem’s testimony over the testimony of the Polish-speaking attorney, who had initially prepared the subject trust and testified that he believed that the ward, Michalak, “did not have diminished or insufficient capacity and understood everything [the attorney] explained during their two consultations.” (404 Ill. App. 3d 78)[10]  In Zagorski, the court appears to have believed that the ward, Michalak, retained some “decisional/ dispositional” capacity despite having been adjudicated as disabled, which may be why the court gave “credit” to the testimony of the guardian and guardian ad litem.

         The facts of JP Morgan Chase Bank, N.A. v. Wemple, 396 Ill. App. 3d 88 (1^st Dist.  2009) better illustrate the reasons for allowing guardians, under the strict control of the courts, to amend and/or revoke provisions of trusts and wills under the court’s strict supervision. In Wemple, in February 2004, Henry, who was then 89 years old, and who was adjudicated as disabled slightly more than 2 years later in April 2006, purported to execute a new will leaving most of his five million dollar estate to his caretaker “Mick”, and his executor, Wemple (the “2004 Will”). At some point, in a separate action, the caretaker was held to have breached his fiduciary duties to Henry and to have engaged in a scheme to misappropriate large sums of money from Henry, who was found to be mentally infirm and unable to protect himself (“Henry 1”) While Henry 1 was pending, Henry’s guardian petitioned the probate court to replace the distributive provisions of Henry’s 2004 Will with a Codicil that mirrored the disposition provisions of Henry’s prior 1999 Will that the guardian alleged Henry’s true testamentary wishes. In addition, the guardian proposed a trust agreement that contained a number of features that benefited Henry including providing for payments for Henry’s care during his lifetime. The probate court approved the action and a subsequent appeal was dismissed on the basis that Wemple and the caretaker did not have standing to contest the guardian’s action because they merely had unenforceable expectancies under the replaced dispositive provisions of the 2004 Will.

VIII.  Disputes Over Who Should be Appointed Guardian

     Formal statutory requirements to be qualified as a guardian are minimal. Individuals can qualify as a guardian if the person is over 18 and a United States resident, who has not been adjudicated as disabled, is of sound mind and has never been convicted of a felony. 755 ILCS 11a-5(a). You don’t even have to be an Illinois resident to qualify as a guardian. Doyle v. Doyle (In re Estate of Doyle), 362 Ill. App. 3d 293, 304 (4^th Dist. 2005) appeal denied, 218 Ill. 2d 539 (2006).

    Pursuant to755 ILCS 11a-5(b):  “Any corporation qualified to accept and execute trusts in Illinois may be appointed guardian of the estate of a disabled person”; See: Howse v. Johnson (In re Estate of Johnson), 303 Ill. App. 3d 696, 704-705 (1^st Dist. 1999). “A parent of a disabled person may designate a person, corporation or public agency qualified under Section 11a-5 [755 ILCS 11a-5(a)], to be appointed as guardian or successor guardian of the person or of the estate or both.” 755 ILCS 11a-16.

     The appointment of a guardian is in the discretion of the court. In exercising that discretion, the court is supposed to give “due consideration” to the preference of the disabled person and to consider “the qualifications of the proposed guardian, in making its appointment.” 755 ILCS 5/11a-12(d).[11] However, the appointment of a guardian is ultimately predicated on the “best interests” of the ward and which individual or entity will best serve and protect the ward’s interests  (In re Estate of Debevec, 105 Ill. App.3d 891, 896-897 (5^th Dist. 1990).

       Accordingly, in In re Estate of Bania, 130 Ill. App. 3d 36 (1^st Dist. 1984). the court rejected the disabled person’s choices as guardian for both the person and the estate In Bania, supra, 130 Ill App. 3d at 40, the court rejected the disabled person’s choice of her niece by marriage as guardian of her person. The court’s rejection was premised on its suspicions of the niece’s possible self-interest because she had made an unexplained trip to the disabled person’s bank and did not clear up those doubts by testifying at the hearing on appointment of respondent’s guardians. The court, at 130 Ill. App. at 41, also rejected the respondent’s choice of guardian for her estate, by appointing a retired policeman, who was the son of the respondent’s cousin, had repeated contact with the ward, already managed two apartment buildings and had the time to manage the ward’s estate including her apartment building. In contrast, the person whom the ward wanted as estate guardian did not testify at the appointment hearing.

      Similarly, family members are generally given preference over non-family members as guardians because “it is presumed that relatives are more solicitous of an incompetent’s welfare than a non-relative.” In re Estate of Debevec, 105 Ill. App.3d 891, 896-897 (5^th Dist. 1990) quoting from In re Conservatorship of Browne, 54 Ill. App. 3d 556, 559-560     (3^rd Dist. 1977). However, where the evidence shows that the best interests of the ward will be served by appointing a non-family member, the Court will make that appointment. For example, in In re Estate of Johnson, 219 Ill. App. 3d 962 (5^th Dist. 1991), the State Guardian was appointed as guardian over a family member that was removed as guardian, where: (a) two factions of the ward’s family were feuding over the family member’s expenditures on the ward’s home; (b) the ward did not want the family member as guardian; and (c) the Guardian Ad Litem believed that a non-family should be appointed as ward’s guardian. The court rejected the contention that the state guardian, who was an outsider, should not be appointed where there was a family member who was willing to serve as guardian.

     The degree of family relationship is a factor that the court will consider in appointing a guardian, but, like the other referenced “preferences” it is not a controlling factor. Thus, in Schmidt v. Schmidt, 298 Ill. App. 3d 682(2^nd Dist. 1998),where the husband had taken good care of his disabled wife, the court gave preference to his spousal relationship in appointing him as his wife’s guardian over the wife’s brother and their  sibling relationship. In so holding, the Court stated at 298 Ill App. 3d 691: “[T]he trial court could properly consider the degree and quality of the relationship between [the respondent] and the proposed guardian as one of several factors in making the appointment.”

     Unlike the situation in Schmidt, in Howse v. Johnson (In re Estate of Johnson), 303 Ill. App. 3d 696, 705-706(1^st Dist. 1999), the court rejected a father’s contention that he was entitled to a statutory preference over an aunt in the determination as to who would be guardian over his daughter. In making its ruling, the court took into account that the ward had lived with the aunt for a long period of time, had a loving and close relationship with the respondent, took good care of respondent and that the respondent wanted her aunt to be her guardian.

     In contrast, the father had periods where he did not regularly visit with his daughter and had been arrears in mandated health insurance premium payments for his daughter. At 303 Ill. App. 705, the Howse Court listed the following factors that may be considered in determining who should be appointed guardian: “recommendations of persons with kinship or familial ties, the relationship between the disabled person and the party being considered for appointment, conduct by the disabled person prior to being adjudicated disabled which manifests trust or confidence in the proposed guardian, prior actions of the proposed guardian which indicate concern for the well-being of the disabled person, the ability of the proposed guardian to manage the incompetent’s estate, and the extent to which the proposed guardian is committed to discharging responsibilities which might conflict with his or her duties as guardian.”

        As the above cases indicate, in choosing among available candidates for guardian, the court is to weigh the evidence as to which candidate(s) for guardian will best serve and protect the interests of the ward. Thus, in In re Estate of Bennett, 122 Ill. App. 3d 756,761 (2^nd Dist. 1984), the court choose a mother and sister of the disabled person as co-guardians over the ward’s wife. In Bennett, the disabled person had been living with his mother for over a year before the guardianship hearing and had been improving health-wise, whereas the wife had little contact with her husband during that extended period. The court rejected the wife’s contention that she should have been selected because she shared property with the ward. As the court reasoned at 122 Ill. App. 3d at 76: “the primary concern in the selection of a guardian is the best interest and well-being of the disabled person.” Accord: Doyle v. Doyle (In re Estate of Doyle), 362 Ill. App. 3d 293, 303 (4^th Dist. 2005): In re Estate of Johnson, 219 Ill. App. 3d 962, 965(5^th Dist. 1991). See also, In re Estate of Robertson, 144 Ill. App. 3d 701, 712 (1^st Dist. 1986),

     In In re Estate of Robertson, 144 Ill. App. 3d 701 (1^st Dist. 1986), a daughter-in-law was selected as guardian over a granddaughter. In making its choice, the Court noted that the granddaughter, who had been living with the respondent for a number of years, had made questionable expenditures on vacations from the ward’s funds and on properties she co-owned with the respondent. In making the guardianship appointment, the court stated at 144 Ill. App. 3d at 712 that: “The court may consider such factors as past actions and conduct of proposed guardians, business experience, ages, and family situations.” Accord: Schmidt v. Schmidt, 298 Ill. App. 3d 682, 690 (2^nd Dist. 1998), In Robertson, the court specifically noted that there was “ample evidence” to support allegations of the granddaughter’s bad faith in her dealings with her grandfather, including destroying accounts that the ward had with other family members and moving the money to an account the granddaughter had with the ward and spending his money for her benefit.

VIII. Issues Relating to the Guardian Ad Litem

        Section 11a-10 (755 ILCS 5/11a-10) entitled “Procedures preliminary to hearing” provides for the appointment of a guardian ad litem (“GAL”) to report to the court on the respondent’s best interests except where the court determines that such an appointment is unnecessary for the respondent’s protection or a reasonably informed decision on the petition for adjudication and appointment of a guardian. Section 11a-10 further provides that the GAL shall personally observe the respondent prior to the hearing on adjudication and shall inform him of the contents of the petition and his rights under the Probate Act. Additionally, under section 11a-10, the GAL is also supposed to attempt to elicit the respondent’s position concerning his or her adjudication as disabled and the proposed guardian and change, if any, in residential placement or other changes that may result from the placement. The GAL’s personal observations and discussion with the respondent should be included in the GAL’s report to the court on the GAL’s views as to whether the respondent is “disabled” within the meaning of the Act and whether, the Petitioner should be appointed as guardian.

       In In re Mark W., 328 Ill. 2d 365, 374 (2008), the Supreme Court stated: “A guardian ad litem functions as the ‘eyes and ears of the court’, and not as the ward’s attorney. (Citing Mabry v. Roberts, 291 Ill. App. 3d 76, 88(4^th Dist. 1996)). The traditional role of the guardian ad litem is not to advocate for what the ward wants, but, instead, to make a recommendation to the court as to what is the ward’s best interests.” (Citing Mabry v. Roberts, supra).The role of the guardian ad litem is thus in contrast to the role of the plenary guardian of the person appointed pursuant to the Probate Act. Under section 11a-17 of the Probate Act, the plenary guardian makes decisions on behalf of the ward, and must, in general conform those decisions ‘as closely as possible to what the ward, if competent, would have done or intended under the circumstances.” In contrast, the GAL acts solely to further the best interests of the ward.

      As the appellate court stated in Mabry v. Roberts, at 291 Ill. App. 3d 88: “The GAL represents the ward’s best interests (as the GAL sees them), not the ward…. If the GAL and ward are in agreement, the GAL does in effect represent the ward. However, the court must appoint separate counsel if the ward requests it or if the ward and GAL take different positions. 755 ILCS 5/11a-10(b) (2) (West 1994). … [Moreover, “[o]nce a guardian of the estate has been named, it becomes that entity’s responsibility to represent the ward in all litigation. 755 ILCS 5/11a-18(c) (West 1994).Thus, a GAL is only required prior to [and at] the hearing on the respondent’s competence, although a court may still appoint a GAL or next friend to represent the ward’s interest in subsequent litigation.” Id. at 88-89.

    In Zagorski v. Kaleta, 404 Ill App. 3d 75, 87 (1^st Dist. 2010), the appellate court affirmed a trial court’s appointment of a guardian ad litem, to investigate the circumstances surrounding the creation of a trust agreement for an elderly lady, who was eventually declared disabled, In so ruling the Zagorski Court stated: “a guardian ad litem may be appointed to represent the interests of the disabled person and is specifically authorized ‘to defend the interests of the ward in court’” The Zagorski Court further found that “the language of section 11a-18(c) is sufficiently broad on its face, allowing the appointment of a guardian ad litem to ‘commence, prosecute or defend any proceeding’.” (Emphasis in original.) (Id.)

    Furthermore as the court articulated in Mabry v. Roberts, supra, at 291 Ill. App. 3d at 89 “The GAL does not represent the ward in a normal attorney-client relationship, in fact the GAL need not even be an attorney. (Citation omitted.) No attorney-client privilege exists between the GAL and ward (Citation omitted.) The GAL’s duty is to serve the ward’s best interest, not to serve the ward.”

IX. The Uniform Adult Guardianship and Protective Proceedings

       Jurisdiction Act

     The Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (“UAGPPJA”, 755 ILCS 8/101 et. seq.) became effective in Illinois on January 1, 2010. The UAGPPJA is intended to provide an efficient and logical process for determining guardianships of guardianships where more than one state may have a connection to the putative disabled person.

    Over the past decades, there has been a significant increase in the number of seniors who have homes in more than one state and therefore, have significant connections with multiple states. Moreover, as the society becomes more mobile and families become more fragmented, instances where parents and children live in separate states have greatly increased.

      The Act fixes jurisdiction for a guardianship or an ancillary proceeding in the adult’s home state as defined in the act, followed by possible jurisdiction in another state or states where the putative disabled adult has significant connections as defined in the Act(755 ILCS 8/203).   The UAGPPJA defines the home state, in 755 ILCS 8/201(2) as “the state in which the respondent was physically present… for at least six consecutive months immediately before the filing of the petition for the protective order of appointment of a guardian….” The Act is intended to facilitate communication and cooperation between the courts of different states where actions involving a disabled person may have been initiated. (See: eg: 755 ILCS 8-104-106).

   At present, there are no reported Illinois cases under the UAGPPJA.