In this article...
In this article, we will explain what happens at an Illinois adult guardianship hearing, how courts determine whom to name as guardian, and the different types of guardianship that court’s can order. The purpose of an adult guardianship hearing is for the court to determine whether and to what extent to appoint a guardian for a mentally incompetent adult. For some foundational knowledge about the adult guardianship process, check out our article: The Illinois Adult Guardianship Process Explained.
In this article, we will explain what happens at an Illinois adult guardianship hearing, how courts determine whom to name as guardian and the different types of guardianship that courts can order. The purpose of an adult guardianship hearing is for the court to determine whether and to what extent to appoint a guardian for a mentally incompetent adult. For some foundational knowledge about the adult guardianship process, check out our article: The Illinois Adult Guardianship Process Explained.
What Happens at an Illinois Adult Guardianship Hearing?
Many adult guardianship hearings are uncontested, meaning that the disabled adult is not arguing against guardianship, the guardian ad litem agrees that the guardianship proposed in the guardianship petition is in the best interest of the disabled adult, and no other third parties are arguing against the proposed guardianship. In uncontested cases, the judge will examine the physician’s report and the guardian ad litem’s report, and no witnesses are typically called.
If the case is contested, it will proceed much like any other litigation, with pre-trial discovery and motion practice. The disabled adult has a right to a jury trial, should he or she choose to exercise this right. At trial, documentary and testimonial evidence will be presented. The burden is upon the party seeking to prove that the disabled adult has a disability. This must be shown by clear and convincing evidence, a higher standard of proof than is required for most cases. Physicians are likely to testify as experienced witnesses for both sides. However, non-physicians can testify regarding their observations of the disabled adult and may offer their opinions on the decision-making ability of the disabled adult.
Regardless of whether the hearing is contested or uncontested, it is the court’s duty to inquire into the following facts:
- The disabled adult’s intellectual and physical abilities;
- The nature and severity of any disability or mental illness;
- The ability of the disabled adult to make and communicate responsible decisions;
- The ability of the disabled adult to manage his or her own financial affairs;
- Whether any proposed living arrangements are appropriate; and
- Any other topic that the court deems appropriate.
Is the Disabled Adult Required to Attend the Adult Guardianship Hearing?
Unless his or her attendance is explicitly excused by the judge, the disabled adult must be present for the guardianship hearing. The court can excuse the respondent’s attendance at the hearing if it is shown that the respondent refuses to attend or that attendance at the hearing would be harmful to the respondent.
How Does the Court Decide Whom to Name As Guardian of a Disabled Adult?
In order to determine whom to name as guardian for a disabled adult, courts will consider the following factors:
- Recommendations of the disabled adult’s family members;
- The relationship between the proposed guardian and the disabled adult;
- Any actions by the disabled adult prior to becoming disabled that serve to demonstrate the disabled adult’s trust in the proposed guardian;
- Prior actions by the proposed guardian that show the guardian to be concerned with the disabled adult’s best interests;
- Whether the proposed guardian possesses the ability to manage the disabled adult’s estate;
- Whether the proposed guardian has other responsibilities which would conflict with his or her responsibilities as guardian; and
- Any financial interest the proposed guardian has in the disabled adult’s estate as well as any impropriety by the proposed guardian.
What Types of Adult Guardianship Can Be Ordered by the Court?
The court may make a distinction between guardianship of the person or guardian of the estate. The guardian of the estate is responsible for management of the disabled adult’s financial affairs, while the guardian of the person is responsible for non-financial decisions.
The court may also make a distinction between a limited guardianship and a plenary guardianship. A limited guardian is only responsible for making certain types of decisions that are specifically enumerated in the court’s order. A plenary guardian is responsible for all major decisions regarding the disabled adult’s person or estate or both.
Unless explicitly granted in the court’s order, the guardian will not have the authority to place the disabled adult in a residential facility. The court’s order may state certain conditions under which placement in a residential facility may be made without an additional order from the court.