JoHn Lafond and Deb feinen Guardianship JoHn Lafond and Deb feinen

Legal Standard Sec. 11a-2. "Person with a disability" defined. "Person with a disability" means a person 18 years or older who (a) because of mental deterioration or physical incapacity is not fully able to manage his person or estate, or (b) is a person with mental illness or a person with a developmental disability and who because of his mental illness or developmental disability is not fully able to manage his person or estate, or (c) because of gambling, idleness, debauchery or excessive use of intoxicants or drugs, so spends or wastes his estate as to expose himself or his family to want or suffering, or (d) is diagnosed with fetal alcohol syndrome or fetal alcohol effects. (Source: P.A. 99-143, eff. 7-27-15.)

Who May Serve as Guardian An Individual (or Co-Guardians) capable of providing an active and suitable program of guardianship for the person with a disability and Is age 18 years; Is a resident of the United States; Is not of unsound mind; Is not an adjudged person with a disability Has not been convicted of a felony (with exceptions) A Corporation qualified to manage Trusts (for Guardian of the Estate only) Any public agency, or not-for-profit corporation found capable by the court

Types of Guardianship Temporary Permanent Estate Person With or without residential placement authority Limited

Ethics Can you represent family in seeking Guardianship of your elderly client May you reveal information about your elderly client’s capacity

Ethics RPC 1.14: CLIENT WITH DIMINISHED CAPACITY When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian. Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.

Steps for Guardianship Initial letter Meeting with clients Intake Form Medical Report Motion to Seal Petition Summons Appointment of Guardian Ad Litem Notice of Hearing Hearing Order Oath and Bond Notice of Right to Seek Discharge Inventory (Estate only) Reporting

Medical Report Must Contain: (1) a description of the nature and type of the respondent's disability and an assessment of how the disability impacts on the ability of the respondent to make decisions or to function independently; (2) an analysis and results of evaluations of the respondent's mental and physical condition and, where appropriate, educational condition, adaptive behavior and social skills. Must have been performed within 3 months of the date of the filing of the petition; Must contain an opinion as to whether guardianship is needed, the type and scope of the guardianship needed, and the reasons therefore; a recommendation as to the most suitable living arrangement and, where appropriate, treatment or habilitation plan for the respondent and the reasons therefore; Must contain the name, business address, business telephone number, and signatures of all persons who performed the evaluations upon which the report is based, one of whom shall be a licensed physician and a statement of the certification, license, or other credentials that qualify the evaluators who prepared the report. Court may Order evaluation and report to be filed with court at least 10 days prior to hearing. Respondent is entitled to an independent exam if he/she so requests one or if Court orders. Statute states that Medical Report is not public record however a Motion to Seal is good practice.

Venue Sec. 11a-7. Venue. If Respondent is an Illinois resident proper venue is the court of the county in which Respondent resides. If the Respondent is not a resident of this State, proper venue is a county in which his real or personal estate is located.

Costs Assessing Costs Fee Waiver Motions Financial Affidavit

Petition Requirements Sec. 11a-8. The Petition Must Contain if known or reasonably ascertainable: relationship and interest of the petitioner to the respondent; name, date of birth, and place of residence of the respondent reasons for the guardianship name and post office address of the respondent's guardian, if any, or of the respondent's agent or agents appointed under the Illinois Power of Attorney Act, if any name and post office addresses of the nearest relatives of the respondent name and address of the person with whom or the facility in which the respondent is residing; approximate value of the personal and real estate and the amount of the anticipated annual gross income and other receipts name, post office address and in case of an individual, the age, relationship to the respondent and occupation of the proposed guardian.

Summons Statutory Requirements on Summons Form Obtain Hearing Date from Court (date certain Summons)- date must be within 30 days of filing of Petition Must be served more than 14 days prior to hearing for Permanent Guardianship Must be served prior to Temporary Guardianship hearing on whatever notice allowed by Judge

Role of Guardian Ad Litem Court Appointed Provide Notice of Rights, copy of Petition and Medical Report Be the Court’s eyes and ears Review documentation Meet with Respondent Interview proposed Guardian Interview others (family, doctors, neighbors etc.) Determine Respondent’s position on appointment of guardian, placement and other issues Determine what is in Respondent’s best Interest Determine if appointed Counsel is needed because Respondent is objecting to Guardianship Prepare written report

Appointed Attorney Court may appoint Counsel for respondent if the interests of the respondent will be best served by the appointment Court shall appoint counsel upon respondent's request or if the respondent takes a position adverse to that of the guardian ad litem

Hearing Sec. 11a-11. Hearing. The Respondent is entitled to: be represented by counsel demand a jury of 6 persons present evidence, and to confront and cross-examine all witnesses The hearing may be closed to the public upon request Unless excused by the court upon a showing that the respondent refuses to be present or will suffer harm if required to attend, the respondent shall be present at the hearing.

Hearing Doctor must appear at any contested hearing unless presence is waived Petitioner must prove by Clear and Convincing Evidence that Guardianship is needed The Court Examines: nature and extent of respondent's general intellectual and physical functioning extent of the impairment of his adaptive behavior if he is a person with a developmental disability, or the nature and severity of his mental illness if he is a person with mental illness; understanding and capacity of the respondent to make and communicate responsible decisions concerning his person; capacity of the respondent to manage his estate and his financial affairs; appropriateness of proposed and alternate living arrangements; impact of the disability upon the respondent's functioning in the basic activities of daily living and the important decisions faced by the respondent or normally faced by adult members of the respondent's community; any other area of inquiry deemed appropriate by the court.

Miscellaneous Issues Right of family to intervene Sterilization of Ward Sale of House Estate Planning Residential Placement Suspension of Driver’s License Orders of Protection

Post Hearing Entry of Order Residential Placement Limited or Plenary Temporary or Permanent Oath and Bond Notice of Right to Seek Discharge

Reporting Inventory- within 60 days Report per Court Order but no less than every 3 years Estate Guardian – keep records, receipts, bank statements etc.

Forms Intake Medical Report Petition for Guardianship of the Person & Estate Motion to Seal – Medical Report Summons GAL Notice of Rights/Entry of Appearance Order for Plenary Guardianship of the Person and Estate Oath and Bond Inventory Annual Report

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