In this article we explain where to file a guardianship proceeding, including answer the questions: “which state has jurisdiction over guardianship?” and “which county is the proper venue for Illinois guardianship proceedings?” We also explain emergency jurisdiction in guardianship proceedings.
For foundational information about adult guardianship, check out our article: Illinois Guardianship Explained.
“Jurisdiction” in the context of a guardianship proceeding is a determination of which state has the power to issue binding orders in the proceeding. A petitioner in a guardianship proceeding must file the case in a state that has jurisdiction over the case in order for the court to issue a binding order. Guardianship jurisdiction is governed by the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (“the Act”), which has been adopted by Illinois.
The baseline rule is that the disabled adult’s “home state” has jurisdiction over the guardianship proceeding. The disabled adult’s home state is defined as a state in which the disabled adult was physically present for at least six consecutive months immediately prior to the filing of the guardianship proceeding. A temporary absence counts toward this six month period.
If the disabled adult does not have a “home state” because he or she has not lived in the same state for six consecutive months prior to filing the guardianship proceeding a state with a “significant connection” to the disabled adult may assert jurisdiction. A significant connection state may also assert jurisdiction if the disabled adult does have a home state, but the home state has declined to exercise jurisdiction because the significant connection state is the more convenient forum for the case.
Courts are instructed by the Act to consider the following factors when determining whether the state in which the case was filed has a significant connection to the disabled adult:
Even if a state is not the “home state” of the disabled adult and is not a “significant connection state,” a state may exercise jurisdiction to appoint a guardian on an emergency basis for a term not exceeding 90 days for a disabled adult who is physically present in the state.
While “jurisdiction” informs the state in which you should file a guardianship proceeding, “venue” informs the appropriate county court within the state in which you should file. If the disabled adult is a resident of Illinois, the county in which the disabled adult resides is the proper venue for a guardianship case. If the disabled adult does not reside in Illinois, then the proper venue is the county in which the disabled adult’s real estate or personal property is located.