Newly enacted responsibilities of a guardian making personal decisions for a disabled person in Illinois
While the law presumes that an adult 18 years of age or older is capable of handling their own affairs, a guardian may be appointed to serve as a substitute decision maker if a person is disabled because of mental deterioration, physical incapacity, mental illness, or developmental disability.
A guardian may be appointed if the disability prevents the person from making or communicating responsible decisions about their personal and/or financial affairs. The duties and responsibilities of a guardian for personal decisions are set forth in 755 ILCS 5/11a-17 and include, among other things, making decisions regarding the support, care, comfort, health, education … maintenance and professional services for the person under a disability.
Recently, the Illinois Legislature added a subsection ( g ) to 755 ILCS 5/11a-17, effective Jan. 1, 2017, which expanded the rights of a disabled person's family members and added to the duties of a guardian of the disabled person's person. New subjection ( g ) expands the rights of a disabled person's adult children which the Court in Struck v. Cook County Public Guardian, 387 Ill.App.3d 867, 901 N.E.2d 946 ( 1st Dist. 2008 ) limited to alerting the court to potential harm and asking the court to intervene. While adult children seemingly still cannot challenge a guardian's decisions, 755 ILCS 5/11a-17( g ) explicitly provides a disabled person's adult children with certain rights and provides a procedure through which an adult child can seek court-ordered visitation with the disabled person.
Subsection ( g ) requires that a guardian of the person make reasonable efforts to communicate with a disabled person's adult children regarding the disabled person's status and may require the guardian to authorize visitation between a disabled person and his or her adult children. Subjection ( g )( 1 ) requires that, absent a court order to the contrary, a guardian must use reasonable efforts to notify a disabled person's adult children of: ( i ) the disabled person's admission to the hospital or hospice program; ( ii ) the disabled person's death; and ( iii ) the arrangements for the disposition of the disabled person's remains. Subsection ( g )( 2 ) authorizes adult children of a disabled person to take specific actions if they believe a guardian is unreasonably preventing them from visiting a disabled person by requesting the Court to order the guardian to permit visitation between a disabled person and the adult child. Before the court authorizes visitation between the adult child and a disabled person, the court must find that the requested visitation is in the best interests of a disabled person.
Actions by a guardian of the person under subjection ( g )( 1 ) and court findings under subsection ( g )( 2 ) must be made conforming as closely as possible to what the disabled person, if competent, would have done. Where possible, the guardian should consider a disabled person's previously expressed preferences and make decisions in accordance with those preferences. If the disabled person wishes are unknown or remain unknown, 755 ILCS 5/11a-17( e ) requires decisions be made on the basis of a disabled person's best interest as determined by the guardian by considering, among other things, the benefits, risks, and any alternatives.
If you have a family member or loved one that has been or may be adjudicated a disabled person due to mental deterioration, physical incapacity, mental illness, or developmental disability, an experienced guardianship attorney can ensure your rights are protected and obligations fully understood. If you are interested in learning more about how to ensure the personal and financial security for a family member or loved one that has been or may be adjudicated a disabled person, please feel free to contact any of Clark Hill's experienced guardianship attorneys.
Chris Hopkins is an associate in the litigation practice group at Clark Hill PLC and helps individuals, families and closely held business owners avoid and resolve difficult transitions of wealth, businesses and real property.
