The right to notice of the guardianship hearing

Rights of a Disabled Adult in an Illinois Guardianship Proceeding

Video by Attorney Kevin O'Flaherty
Article written by Illinois Attorney Kevin O'Flaherty
Updated on
October 9, 2019

In this article, we explain the rights of an allegedly disabled adult in an Illinois guardianship proceeding.  

In Illinois, when someone petitions to be appointed as guardian over an allegedly disabled adult, a hearing will be held, during which the petitioner must demonstrate both that the disabled adult is incapable of making personal or financial decisions for himself or herself and that the proposed guardian is appropriate.  To learn more about guardianship proceedings generally, check out our article: Illinois Adult Guardianship Hearings Explained.

Often the allegedly disabled adult will not want to be declared legally disabled and have a guardianship instituted.  Allegedly disabled adults have the following rights when responding to a guardianship petition:

The right to notice of the guardianship hearing

The allegedly disabled adult must be personally served with summons and a copy of the guardianship petition at least 14 days prior to the date of the hearing.  To learn more about notice requirements in guardianship proceedings, check out our article: What Notice is Required in Illinois Guardianship Proceedings?

The right to be present at the guardianship hearing

Although the allegedly disabled adult has the right to be present at the hearing, the judge may excuse attendance if it is shown that the allegedly disabled adult refuses to attend the hearing or that attendance would cause harm to him or her.

The right to be represented by an attorney

Allegedly disabled adults have the right to retain their own attorneys.  The court has discretion to appoint an attorney to represent the disabled adult if the court believes it will be in the disabled adult’s best interests.  The court is required to appoint an attorney for the disabled adult if the disabled adult’s desires differ from the recommendations of the guardian ad litem. If the allegedly disabled adult is unable to afford an attorney, the court may require that his or her attorney fees be paid by the petitioner.

The right to a jury of six persons at the guardianship hearing

Although the allegedly disabled adult has the right to a trial by jury, sometimes it is more advantageous to have the case decided by the judge.  This is an option that should be discussed with the attorney for the disabled adult.  

The right to present evidence to the court and cross-examine witnesses

The allegedly disabled adult may present evidence, including both expert and non-expert testimony, demonstrating that he or she is capable of making his or her own decisions.

The right to have the court appoint an independent expert to examine the allegedly disabled adult

The purpose of the independent medical examination is for the expert to give an opinion as to the ability of the allegedly disabled adult to make his or her own decisions.  If the allegedly disabled adult cannot afford the fee for the independent medical examination, the court may require this fee to be paid by the petitioner.

The right to a closed guardianship hearing

A closed hearing is one that is not open to the public.

The right to state a preference regarding who will be appointed guardian

The court will weigh the allegedly disabled adult’s preference as to who will be named guardian along with all other relevant facts in order to determine the best interests of the disabled adult

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