Orders of Protection in Guardianship Proceedings in Illinois

Orders of Protection in Guardianship Proceedings in Illinois

Video by Attorney Kevin O'Flaherty
Article written by Illinois & Iowa Attorney Kevin O'Flaherty
Updated on
October 28, 2019

In this article, we explain “orders of protection in Illinois guardianship proceedings” and answer the questions “who can request an order of protection?”, “who qualifies as a disabled or high-risk adult for an order of protection?”, and “can a guardian be included in an order of protection?”.

For some foundational information, please check out our articles: Illinois Orders of Protection Explained and Illinois Guardianship Information: What is a Guardianship for a Disabled Adult.

What is an Order of Protection?

An Order of Protection is a court order that protects one party from another “household” member.  To obtain an Order of Protection, the following statements must be true:

  • The petitioner (or protected party if they are being represented by another) is a family or “household” member of the respondent;
  • The Court has jurisdiction to hear and rule on the case; and
  • The respondent has “abused” the petitioner (or protected party).

Note that the terms "household member" and "abuse" are both broadly defined. You should not assume that you are not eligible to obtain an order of protection without speaking to an attorney.

To learn about the different types of Orders of Protection, see our article entitled Illinois Emergency Orders of Protection and Illinois Interim Orders of Protection Explained.

Who Needs a Guardian?

Guardianship is not to be taken lightly.  When guardianship is granted on behalf of a minor, the guardianship ends automatically when the child turns 18. The state of Illinois recognizes a parent’s right and responsibility to care forand make decisions for their own children, so a guardian is unlikely to be appointed unless both parents are unable to make sound decisions for the child.

The most common type of court-appointed guardianship is for “incapacitated” adults.  However, when a disabled, high-risk or elderly adult is given a guardian, guardianship can be very difficult to revoke; even if the person no longer needs guardianship.  Here are some questions to consider while deciding if a guardian is necessary:

  1. Does the person understand the options available in any decision?
  2. Does the person understand that a particular decision needs to be made?
  3. Does the person understand the consequences of each option?
  4. Is the person capable of properly informing the appropriate parties after a decision has been made?

Having a legal guardian takes away a person’s right to make decisions for themselves, so guardianship should only be used as a last resort.  If you need more information about the process of becoming a guardian, check out our articles about guardianship, including How to file a Petition for Adult Guardianship in Illinois and What is a Court-Appointed Guardian|Illinois Guardianship Explained.

Orders of Protection in Guardian Proceedings in Illinois

Petitions for Guardianship and Orders of Protection sometimes go hand-in-hand, as they are both methods to protect the minor or high-risk adult that is being abused.  If a person cannot file a petition for themselves due to age or a disability which prevents him or her from seeking and obtaining the protection they need, it is likely they will need help again in the future.  According to The Probate Act, an Adjudication of Disability and Appointment of Guardian can be determined in the same proceeding as an Order of Protection as long as the petition alleges that the person in need of guardianship is a party to or the subject of the Order of Protection.  To learn more about how guardianship pertains to adults, see our article entitled Illinois Adult Guardianship Hearings Explained|What Happens at an Illinois Adult Guardianship Hearing.  You can also click here for a .pdf file from the Illinois Department on Aging, created for Orders of Protection for people with disabilities.

Who Can File for an Order of Protection in Illinois?

Whenever possible, the person that is being harmed, “abused” or neglected, should file the petition for his or her-self.  An Order of Protection can only be successfully acquired if the person requesting the OP is:

  • Someone acting on behalf of a minor who has been “abused” and cannot make legal decisions for his/herself
  • Someone who has been “abused” by a family member or member of his/her household
  • Someone acting on behalf of a high-risk adult who has been “abused” and whose disability prevents them from being able to seek or obtain protection on their own

Who Qualifies as an Incapacitated, Disabled or High-Risk Adult in Illinois?

The Illinois Domestic Violence Act defines an “incapacitated” or “‘high-risk’ adult with disabilities” as an individual who is at least 18 years old and “whose physical or mental disability impairs his or her ability to seek or obtain protection from ‘abuse,’ neglect, or exploitation.”  “Abuse” is defined as any of the following behaviors:

  • Physical Abuse
  • Harassment
  • Interference with personal liberty
  • Intimidation of a dependent
  • Willful deprivation

To learn more about each type of “abuse,” read our article entitled What Constitutes “Abuse” for the Purpose of Illinois Orders of Protection?.

For more information about high-risk adults and obtaining an Order of Protection, see our article entitled Illinois Orders of Protection for Neglect or Exploitation of a Disabled Adult.

Can a Guardian Be Included in an Order of Protection?

If a disabled or high-risk adult already has a guardian and is seeking an Order of Protection, the judge may choose to appoint a temporary substitute guardian until the matter is resolved.  Conversely, if the guardian or future-guardian is named the abuser (known as the respondent) by the petitioner, the judge is required to select a temporary substitute guardian to protect the petitioner.  The term “family member” is defined loosely by the court.  A person the petitioner is dating or once dated, friends, any family member, roommates, former spouses and guardians are among those that the court will consider “household members.”

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