1. JoHn Lafond and Deb feinen
Guardianship
JoHn Lafond and Deb feinen

2. 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 , eff )

3. 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

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

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

6. 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 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.

7. 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

8. 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.

9. 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.

10. Costs
Assessing Costs
Fee Waiver Motions
Financial Affidavit

11. 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.

12. 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

13. 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

14. 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

15. 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.

16. 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.

17. 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

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

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

20. 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

21. QUESTIONS