The purpose of this article is to explain the powers and duties of a Guardian of the Person in Illinois adult guardianships. In broad terms, a guardian of the person is an individual appointed by the court to make non-financial decisions on behalf of a disabled or mentally incompetent adult. This is distinguished from a guardian of the estate, who is charged with making financial decisions on behalf of the disabled adult.
The powers of a guardian of the person are very broad, but are subject to the review of the guardianship court. The guardianship court can override the guardian’s decisions if the court finds that they are not in the disabled adult’s best interests.
The guardian of the person is required to use “substituted judgment” when making decisions for the disabled adult. This means that, if the guardian is able to ascertain the decision that the disabled adult would have made in a given situation if the disabled adult were mentally competent, the guardian must make that decision on behalf of the disabled adult, even if the guardian thinks that such decision would not be in the best interests of the disabled adult. The guardian should take into account the disabled adult’s religious, moral, and philosophical beliefs as well as any wishes that the disabled adult expressed while competent. If the disabled adult’s wishes are not ascertainable, then the guardian must make decisions based on the best interests of the disabled adult.
An exception to the “substituted judgment” rule is that the guardian can make decisions based on the disabled adult’s best interests rather than “substituted judgment” with respect to living placement if the disabled adult’s wishes would cause harm to the disabled adult or the disabled adult’s finances.
One of the most commonly used powers of a guardian of the person is the power to make medical decisions on behalf of the disabled adult. The guardian has the power to consent to medical treatment even if the disabled adult objects, but the guardian must still make medical decisions based on the “substituted judgment” standard. The guardian may refer to the court to assist in making difficult and important medical decisions. In these cases, the court may appoint a guardian ad litem to assist in making the decision.
Guardians of the person do not automatically have the power to decide where a disabled adult will live, unless this power is explicitly granted by the court. Guardians are instructed by the law to avoid removing the disabled adult from his or her home or separating the disabled adult from family and friends unless doing so is necessary to prevent substantial harm to the disabled adult or the disabled adult’s estate. Guardians are also required to investigate reasonable alternatives to the proposed living situation and continue to monitor the disabled adult’s living situation to make sure it continues to meet the disabled adult’s needs.
A guardian of the person does not have the power to admit a disabled adult to a mental health facility unless the disabled adult consents to the admission and also is adjudged by the facility to have the capacity to consent. A disabled adult has the capacity to consent if he or she is able to understand:
Although the guardian does not have the power to admit the disabled adult to a mental health facility without the disabled adult’s consent, the guardian may file a petition in court to involuntarily commit the disabled adult pursuant to the involuntary admission clauses of the Mental Health and Developmental Disabilities Code.
A guardian of the person is not automatically responsible for the custody of the disabled adult’s minor children, but may acquire this power and duty by court order.
The guardian of the person has the power to access and consent to the release of the disabled adult’s medical records. The guardian has the same power with respect to medical records that the disabled adult would have were the disabled adult competent.
Guardians of the person have the duty and power to ensure that the disabled adult receives any necessary professional services from experts. The guardian should attend these sessions, and should obtain court authority before hiring professionals if the services will represent a significant cost to the estate.
Guardians of the person may also file for dissolution of the disabled adult’s marriage, consent to an abortion on behalf of the disabled adult, and control who visits the disabled adult. The guardian may even prevent the disabled adult’s family from visiting him or her.
The court may require the guardian of the person file a report at regular intervals that includes the following information:
O'Flaherty Law is happy to meet with you by phone or at our office locations in: