This article is meant to explain the role of a guardian ad litem in an Illinois adult guardianship case. For some foundational knowledge about adult guardianship cases, check out our previous articles: Adult Guardianship in Illinois Explained and How to File a Petition for Adult Guardianship in Illinois.
A guardian ad litem is a person appointed by the court in an adult guardianship case for the purpose of representing the best interest of the allegedly disabled adult, also known as the “respondent.”
Section 11a-10(a) of the Illinois Probate Act sets forth the rules for appointment of guardian ad litems in adult guardianship cases. After a petition for guardianship of a disabled adult is filed, the court is required by the Probate Act to appoint a guardian ad litem unless the court determines that a guardian ad litem is not necessary to protect the respondent or inform the court. This gives the court discretion to waive the requirement of appointing a guardian ad litem if the case is clear cut and non-contentious.
According to the Probate Act, the guardian ad litem must either be a licensed attorney or be specifically qualified to work with and advocate for individuals with the type of disability that is the subject of the case. In practice, however, the guardian ad litem will almost always be a licensed attorney.
Once the guardian ad litem is appointed by the court, he or she will perform several tasks, including:
After the guardian ad litem has completed his or her fact-gathering process, he or she will file a written report with the court, detailing:
The report must be filed on or before the date of the hearing to determine guardianship. The guardian ad litem will appear at the hearing to testify regarding his or her findings.
Sometimes the wishes of the disabled adult will differ from the guardian ad litem’s opinion as to what would be in the disabled adult’s best interests. It is important to note that the guardian ad litem’s job is to represent the best interests of the disabled adult, not the wishes of the disabled adult. When the guardian ad litem’s opinion regarding best interests of the disabled adult diverge from his or her wishes, the court must appoint an additional attorney to represent the disabled adult in pursuing his or her wishes. The court must also appoint separate counsel if the disabled adult requests such appointment.
The guardian ad litem will typically be paid by the disabled adult’s estate. However, in cases where the disabled adult’s estate cannot afford to pay the guardian ad litem’s fees, the court may order the petitioner to pay these fees.