In this article we explain how to terminate a guardianship of a disabled adult in Illinois. We address the following:
For foundational information on guardianship, check out our article: Illinois Guardianship Explained.
A guardian may be appointed to make personal and/or financial decisions on behalf of a disabled adult if a court determines that a potential ward lacks the mental or physical capacity to make such decisions for himself or herself. However, if the ward regains the capacity to make such decisions, the guardianship may be terminated or modified to restore the decision making rights of the disabled adult. This is known as restoration.
If the guardian is responsible for all of the disabled adult’s decisions, this is known as a “plenary guardianship.” If the disabled adult becomes capable of making some but not all decisions, a plenary guardianship may be modified to a limited guardianship in which the guardian is empowered to make certain specific types of decisions on the disabled adult’s behalf, while the disabled adult is empowered to make others.
The guardian, the ward, or any other interested party may file a petition for termination of a guardianship with the court that currently has jurisdiction over the guardianship case. Alternatively, the ward or a third party acting on the ward’s behalf may make a request for termination of the guardianship by communicating the request to the court or judge by any method including telephone or informal letter.
Whether the request for discharge of the guardian is initiated by petition or by an informal request, the court will generally appoint a guardian ad litem to investigate the situation and report back to the court with a recommendation as to whether the guardianship should be terminated.
Ultimately a hearing will be held at which the party seeking to terminate the guardianship and the parties objecting to the termination will have the opportunity to present evidence to the court to support their positions. The burden of proof is on the party seeking to terminate the guardianship to demonstrate by clear and convincing evidence that the ward is capable of making his or her own decisions. Clear and convincing evidence is a higher standard of proof than the “preponderance of the evidence” standard that is typical in civil cases.
A medical report is not always required to terminate a guardianship of a disabled adult in Illinois. However, physicians’ reports are very persuasive evidence, so it is recommended that such a report be obtained and provided to the court. The court may request that the ward provide a medical report, and weigh a failure to do so against the ward.
It is a guardian’s responsibility to take actions that are in the best interest of the ward, not necessarily to follow the ward’s wishes. If a ward requests that a guardianship be terminated, the guardian should evaluate the ward’s decision-making capacity. If the guardian feels that the ward is capable of making his or her own decisions, then the guardian should work with the ward to facilitate the termination of the guardianship. If the ward is unsure or believes that the ward is incapable of making his or her own decisions, then the ward should object to the termination of the guardianship and let the court decide the issue after investigation by a guardian ad litem and a medical report.
The court may appoint counsel for the ward if the court finds that such appointment is in the best interests of the ward. The court is required to appoint counsel for the ward upon the ward’s request of the guardian or some other party takes a position in the case that is different from the one recommended by the guardian ad litem.
If a guardianship is terminated based on restoration of a disabled adult’s decision-making capabilities, the guardian is required to return all of the disabled adult’s assets to the disabled adults. The guardian is also required to provide a final accounting of the guardian’s financial actions. The ward is entitled to investigate the actions of the guardian even if previous accountings have been approved by the court.
A guardian does not have standing to appeal the restoration of a disabled adult in Illinois, because the guardian no longer represents the ward once the guardianship has been terminated.
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