Guardianship of Adult Children

This article was kindly contributed to us by Roman J. Seckel from the Drendel & Jansons Law Group.

In my high school psychology class, my history teacher came and spoke to us one day about his disabled son. He read to us a short story in which he compared having a disabled child to a trip to Europe. The story began with a couple planning to go to Italy to tour all of the beautiful sights in Italy, however, instead of landing in Italy, the couple landed in Holland. While the couple was initially shocked at landing in Holland, they came to appreciate Holland’s beautiful landscapes, windmills, and tulips. In short, they found beauty and comfort in their surprise trip.

The surprise trip is an allegory to having a disabled child. Having a disabled child may be an initial shock; but, in the end, having a disabled child is as awarding if not more so, than having a non-disabled child. In working with many clients of disabled children, I have seen some great examples of parenting, and I have been inspired by them.

Inevitably, our children grow up, including our disabled children. One subject that gets little attention is how to protect a disabled child once he or she becomes an adult. This short article will help parents of disabled children understand the process of establishing guardianship of adult children.

Under Illinois law, a person who is 18 years or older is presumed to be an adult, regardless of physical or mental capabilities. Absent some determination of incapacity, a person who turns 18 becomes free to make decisions and be responsible for his or her own actions. An adult with significant disabilities, however, may be unable to manage his or her own affairs. Adults with significant disabilities are dependent on other people who need to have the legal authority to care for them, manage their affairs and make decisions for them.

The responsibility of caring for a disabled adult often falls on parents or other family members. Healthcare providers, including doctors, pharmacists, and therapists, require proof of legal authority for one person to make personal and healthcare decisions for another person who is an adult. Health care providers will not even discuss or share health care information without some waiver of privacy or other authority. The legal means to accomplish this is through a guardianship proceeding.

A guardianship proceeding is handled through the court system pursuant to the Probate Act (755 ILCS 5/11A-1 et seq.) The process begins by filing a petition for guardianship, obtaining a physician’s report and providing notice to the persons entitled to receive the notice who are identified in the Act (the closest adult relative including parents and adult siblings). Many counties have forms available online through the local clerk of the circuit court’s website.

After notices are given as required by law, an initial court date will be set in which the judge will appoint a guardian ad litem. The purpose of the guardian ad litem is to determine that a guardianship is warranted and that the proposed guardian is suitable. A guardian ad litem becomes the eyes and ears of the judge. A request can make to bypass the appointment of a guardian ad litem, which creates delay and increases cost Judges may waive the guardian ad litem appointment, especially when a natural parent is seeking guardianship before the child turns 18.

In fact, the entire process can be streamlined if it is begun before the child turns 18. Before a child turns 18, a parent still has legal authority over the child so service on the child is not separately required. Presumptions in favor of the parents apply, and the appointment is usually perfunctory. After a child reaches adulthood (18), judges are required by law to impose the procedural safeguards required for adults.

There are some additional considerations to bear in mind. Parents should consider establishing a special needs trust that will allow the disabled adult to qualify for government assistance while making assets available for things other than base support and health care. Divorced parents may want to discuss and plan for care for their child who is a disabled adult in their divorce decree. A disabled adult may be eligible for support from one or both parents under 750 ILCS 5/513. Unlike child support under 750 ILCS 5/505, the responsibility of the parents to contribute to the needs of their adult children is not set as a specific percentage of net income; rather it is determined by the financial needs of the child and the respective ability of the parents to contribute to those needs.

As with anything, advance planning and thought can save time, cost and frustration down the road. Caring for a disabled child who is now an adult can present legal obstacles that are not issues while the child is a still minor. Planning for the care and management of a disabled child’s needs before reaching adulthood is highly recommended. If you are beyond that point, and your disabled child has already reached legal adulthood, there is no reason to lose heart. The law provides a relatively easy means for establishing the authority for you to continue caring for your child and making the decisions that need to be made through the means of a legal guardianship.

Roman J. Seckel
Drendel & Jansons Law Group
111 Flinn Street
Batavia, IL 60510
(630) 406-5440
(630) 406-6179 fax
rjs@batavialaw.com

Meet Frances Piekarski of Living Life with Dignity in St. Charles

This is an article that VoyageChicago put together and it tells you a little bit more about the roots and branches of Living Life with Dignity.

Frances, let’s start with your story. We’d love to hear how you got started and how the journey has been so far.

Fran Piekarski, Founder and President of Living Life with DignityLiving Life with Dignity evolved from my original company, Remedease, a professional organizing and life planning company. Over the 15 year life of Remedease I did extensive work with individuals suffering from chronic disorganization due to behavioral health challenges with a specialty in hoarding disorder.

Working with these clients opened my eyes to the need for advocacy. They needed a voice. This coupled with my own life experiences lead me to reevaluate our business model. By now I had grown Remedease into a “we” and not just a “me.” We were determined not only to leave someone’s environment in order, but to also support them with life resources in order for them to sustain the progress that was made and to continue their independence.

Between 2010 and 2011 I was asked to be guardian for one of our clients which required me to formulate a company with non-profit status. Life with Dignity was created to provide this designation for Remedease to take on the role as a corporate guardian. Once we began providing our clients with case management and advocacy in addition to our organizing services and guardian services we chose to rename Remedease. Our new name, Living Life with Dignity now encompasses all of our services from life planning to case management and guardianship.

Today, Living Life with Dignity continues to work with clients dealing with behavioral health challenges, including those suffering from hoarding disorder. However, we also work with those with developmental disorders, dementia and aging in place. Using the tools of Advocacy, Care Management, Life/Care Planning and in the most extreme cases, guardianship, we move those we help to sustaining stability. This relieves their families of the stress of managing the many needs of individuals in the communities we serve.

Overall, has it been relatively smooth? If not, what were some of the struggles along the way?

I think being in business is always challenging but without challenge there is not growth. When you are working toward a specific mission that you believe benefits others it is a lot easier to rise up in any challenge and we strongly believe that we fill a very specific need. With that, some of the challenges were:

  • Given that our staff at the time had limited case management and benefits knowledge, there was a learning curve. The solution was to hire additional staff strong in this area and to always explore and seek those resources that we had that could help us. In addition, some team members got certified as professional guardians and we continue to educate ourselves on a variety of topics that help us to serve our clients with the utmost care and quality of service.
  • The re-branding was also a struggle. It may have been easier to make the guardianship designation a name more in line with Remedease than the other way around.
  • Re-establishing a presence with a new demographic. In this area, we did very well, it just took a little longer than expected.

Please tell us about Living Life with Dignity.

Our Mission is to provide a voice of support and advocacy for individuals and their families with life challenges. We enable each person we work with to live an enhanced life with dignity.

I think that says it all except for how we do that…

  • Advocacy to give people a voice.
  • Case Management allows for continuity of care.
  • Life/Care Planning provides a plan for one or more support members to execute.
  • Person Centered Care focuses on what a client can still do instead of dwelling on what they can no longer do.
  • Life Organization to ensure the safety and well being of ones environment and resources.
  • Life with Dignity services secures individuals without a power of attorney or in need of a guardian with the benefit of an attentive and responsible party to carry out their needs and wishes.

We are most proud of our core values of compassion, non-judgement and resourcefulness. We execute these with great care, providing each client with a holistic and team approach to their care. It is truly about honoring each individual’s right to Life with Dignity.

If you had to go back in time and start over, would you have done anything differently?

Nothing…because each mistake, each challenge, each lesson helped us to grow. We would not change that in the least. We have not stopped learning either. Each client and every family provide us with new experiences, new challenges. We know that all of these events make us better for the benefit of those we serve.

Contact Info:

Address: 100 Illinois St. Suite 200
St. Charles, IL 60174
Website: www.lifewithdignity.net
Phone: 6305490654
Email: frances@lifewithdignity.net

8 Questions About Plenary Guardianship Answered

What is a Plenary Guardian?

When it comes to Plenary Guardianship, there are a lot of factors that need to be considered and processes that need to be executed before the plenary guardianship is actually granted. Who will be the guardian? How much does it cost? What are the duties and responsibilities of the guardian and how do Illinois courts decide who to appoint as guardian? Is there already a health care directive in place? Equip yourself with knowledge and let us help you every step of the way before making drastic decisions. Living Life with Dignity offers the assistance of knowledgeable, certified professional guardians who exceed industry standards. We are deliberate, thorough and ethical advocates who prioritize our client’s best interests. Prior to making any legal decisions, we work with the family to ensure sensitive issues are thoughtfully considered and appropriately communicated.

What is plenary guardianship?

Plenary Guardianship, also, referred to as conservatorship, is a legal process, utilized when a person can no longer make or communicate safe or sound decisions about his/her person and/or property or has become susceptible to fraud or undue influence. Because establishing a guardianship may remove considerable rights from an individual, it should only be considered after alternatives to guardianship have proven ineffective or are unavailable.

How do I set up a plenary guardianship in Illinois and how long does it take?

It is best to seek the advice and assistance of a guardianship attorney. You can represent yourself Pro Se, but it is not recommended. However, if you don’t have the money to hire a lawyer there are places like Prairie State Legal or Administer Justice that may be able to help with the plenary guardianship or walk you through the process depending on your individual circumstances. Get in touch with us if you need assistance finding the right people to help.

Is there already a health care directive in place?

Is a Healthcare Directive in place?Each case is different. Given that there are different types of guardianship and 3 types of directives, (health, mental health and property), you need to establish what the need is. If there are directives for health and property but not for mental health and it is the mental health that is the cause for the individual’s lack of capacity, then you may need to consider plenary guardianship. In most cases, if a directive is in place, guardianship should not be necessary provided that there is a physician’s statement declaring that the individual does NOT have capacity. If you do not have that statement, then it is best to consult an attorney. My rule of thumb is when in doubt defer to someone who can give you a definite answer. You may have to pay for that advice but in the long run it will be worth it.

Who will be the guardian?

In most cases the court prefers to appoint a family member or close friend. Guardianship with a corporate guardian or public guardian can be costly to the individual’s estate. In addition, if the individual doesn’t have the means they will end up with the office of state guardianship. While this appointment is free to the individual, it is not the best means of support simply because of the ratio of client to state guardian.

If there is no one willing or able to be the guardian, and the individual has assets of $25,000 or more, a private corporate guardian such as Life with Dignity can be appointed, or the public guardian will be appointed.

What are the costs?

In any guardianship there are costs, which can be as little as $3,000. Let’s use the example of a parent of a disabled adult who seeks guardianship to continue care for their child. In most cases the adult child wants to stay at home and be taken care of by their family so they would not contest the guardianship and the court would see this favorably. The costs in this example would be for the guardian’s attorney and the guardian ad litem (GAL). A GAL is a person the court appoints to investigate whether the guardianship is appropriate. See Living Life with Dignity’s costs here.

In the case of a contested guardianship, whether it is contested by the individual or another friend or family member, the cost can be catastrophic.

Who is responsible for payment?

Living Life with Dignity can assist you secure a financial plan for the future.If you are the petitioner requesting the court to grant guardianship, responsibility for payment will depend on whether you are appointed or not. If you are appointed guardian, the estate of the Ward is responsible for all fees, including those of the GAL and all attorney’s fees. If, however, you are not appointed and it is determined that the individual does not need guardianship then you are responsible for all costs. In some cases, the individual may be expected to pay for their attorney but the GAL and your own attorney fees and any other fees such as medical testing bills would be the petitioners responsibility.

What are the duties and responsibilities of the plenary guardian?

If you are the guardian of the person only, then your duties are limited to making healthcare and mental healthcare, end of life decisions, and residential placement.

If you are guardian of the estate as well you are responsible for all financial matters. Including bill paying, benefits management and bookkeeping.

Regardless of what type of guardian you are each requires you to file an annual report. The county in which the guardianship is in has a form to be filled out annually that walks you through the healthcare portion of it. Annual reporting for guardian of the estate is a bit more intense and requires the guardian to report all expenditures for the Ward and account for any assets that were spent.

In addition, as guardian of the estate you will have to provide an inventory of assets to the court when you are first appointed. You will also have to provide an annual budget. It is important when creating the budget, that all of the ward’s needs are reflected in that budget. As guardian you are also expected to see your ward at least once per month.

What do courts consider when deciding who to appoint as guardian or conservator?

You cannot have a felony when applying to be a guardian and you must be over 18. The court requires the petitioner to prove evidence that the guardianship is necessary. Part of that evidence is a Physician’s report which is a form filled out by a doctor that states the individuals physical or mental health status.

The court will also examine the relationship and personal history of the person petitioning to determine the appropriateness. The GAL will interview the Petitioner and others in the respondent’s life and make a recommendation to the court. I have been involved in cases where the person that petitioned was not the person appointed.

The final verdict is disposed of by the Judge.

Is a guardianship forever?

It doesn’t have to be. If a ward is ill, say in a car accident or because of a mental illness, gets treatment and recovers, the ward can petition the court to have the guardianship removed or at the very least, limited. Again, this can be a costly process without considerable documentation as to the person’s progress. It helps if all parties agree to the guardianship removal.

Glossary of terms:

  • Petition: Formal written request to the court.
  • Petitioner: the person that files the petition.
  • Respondent: the person the petition is filed regarding.
  • Ward: the individual under guardianship
  • Conservator: Interchangeable term for guardian
  • Guardianship: The position of protecting or defending something or someone.
  • Guardian: Protector or Defender
  • Annual Report: A report written to the court on a yearly basis to inform the court of the ward’s status and to reinforce the continued need for the guardianship.
  • Residential Placement: Where the Ward is to live. This can be at his/her home, a group home or support living or nursing home. Most important is that it be appropriate and the least restrictive allowable.
  • Guardian Ad Litem: (GAL): An attorney appointed by the court to represent the court in determining the appropriateness of the guardianship.
  • Felony: a crime, typically one involving violence, regarded as more serious than a misdemeanor, and usually punishable by imprisonment for more than one year or by death.