A STEP BY STEP GUIDE TO THE UNCONTESTED GUARDIANSHIP … · The “book” for adult guardianship is 755 ILCS 5/11a et seq. In order to guide you through the process I have included

A STEP BY STEP GUIDE TO THE UNCONTESTED GUARDIANSHIP

By Eugenia C. Hunter

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It’s easy as 123 As simple as do re me

ABC, 123 -Jackson 5

It’s in the book -Flip Wilson The “book” for adult guardianship is 755 ILCS 5/11a et seq. In order to guide you through the process I have included the basic forms I use in the First Judicial Circuit, however, your circuit or county may have preferred forms – so check the website and, if available, use those. Forms are never a substitute for professional judgment and adult guardianships are no exception. Every situation is different and you must determine the dynamics of the case presented on an individual basis. The Steps 1. Initial interview - Determine if a guardianship is proper under the circumstances considering the incapacity of the alleged disabled person and if other alternatives are available. - Get the details. I use a blank copy of the petition as a basis for gathering information and interviewing client. - Who will be the petitioner? (5/11a-3(a)) - Who will be the guardian? (5/11a-5) - Estate, person or both? (5/11a-3) - Plenary or limited? (5/11a-14) - Residential placement? (5/11a-14.1) - Representation Agreement - Start Checklist 2. Correspondence to Physician with copy of Physician’s Report. (5/11a-9(a)) 3. Prepare Initial Pleadings - Petition for Guardian (5/11a-8) - Motion for Guardian ad Litem - two versions are given-choose one (5/11a-9(b-5)) - Order Appointing Guardian ad Litem

- Summons (5/11a-10(e)) - Notice of Rights of Respondent (5/11a-10(e)) 4. File documents/Get hearing date - Place summons with sheriff for service. The Petition for Guardian and Notice of Rights of Respondent must be attached. (5/11a-10(e)) - Correspondence to guardian ad litem including copies of Petition, Motion and Order of Appointment, Physician’s Report and the guardian ad litem’s Entry of Appearance and anything else important or unusual. - Prepare and mail Notice of Hearing or Appearance and Consents (5/11a-10(f)) 5. Prepare for Hearing - Review Physician’s Report and file with court to be secured (5/11a-9(c)) - Review Guardian ad Litem’s Report - Follow up telephone calls - Prepare witness(es) 6. Prepare Final Documents - Order (5/11a-12) - Oath and Bond of Representative – No Surety or Oath and contact insurer regarding requirements for bond and cost (5/12-1 et.seq.) - Letters of Office- Guardian - Statement of Right to Discharge Guardian or Modify Guardianship (5/11a-19) 7. Hearing (5/11a-21) - Present Order, Oath and Bond to court for signature - Present Letters to clerk to be issued - Present Statement of Rights to be issued and mailed by clerk (prepare envelope to respondent if required by your clerk). (5/11a-19) - Give copies of Order and Letters to guardian 8. Post Hearing (5/11a-17 and 18) - Remind your client of obligations of a guardian and importance of sound financial management and record keeping to prepare annual reports. Illinois law presumes that anyone over the age of 18 is capable of handling his or her own affairs. Removing decision making from an adult and appointing a substitute decision maker is serious business. A guardian may only be appointed if it is demonstrated by clear and convincing evidence that a person has a disability as defined in Section 11a-2. Guardianship should only be used to promote the well-being of the person with a disability as necessary to protect him or her from neglect, exploitation or abuse and to encourage development of his or her maximum self-reliance and independence and only to the extent necessary (Section 11a-3).

If the court finds a person to lack some but not all of the capacity to make and communicate decisions concerning the care of his person or to manage his estate, the court should enter an order stating the factual basis for its findings and specify the powers of the guardian and the legal disabilities to which the respondent is subject (Section 5/11a-12). This is known as a Limited Guardianship. The importance of limited guardianship cannot be overstated. For one thing the appointment of a limited guardian is not a finding of legal incompetence, and removes from the ward only the authority specifically conferred on the limited guardian by the order (Section 5/11a-14). Limited guardianships are not used as often as they should be to carry out the policy of maximum self-reliance and independence. No form is included for limited guardianship as each must be tailored to the facts of the case.

The most effective way to do it, is to do it.

-Amelia Earhart

STEP ONE

REPRESENTATION AGREEMENT

1. Probate Consultation Services. By signing this agreement, the

undersigned (“you” or “Client”) retains Eugenia C. Hunter (“Attorney”) to render legal service to the Client regarding representation of in the guardianship of ________________.

2. Representation. By co-signing this agreement with you, Attorney hereby accepts employment and agrees to represent and render such services for you and on your behalf on the terms of this agreement. You agree to cooperation with and assist Attorney in a reasonable manner, to provide information and documents as required, and that all information provided by you will be true and accurate to the best of your knowledge. Each Client agrees that there will be complete and free disclosure and exchange of all information that Attorney receives from each Client in the course of Attorney’s representation and that such information shall not be confidential between any Client.

3. Attorney’s Fees. Attorney’s fees will be based on an hourly rate of $___________ per hour, plus costs advanced.

4. Costs. Client further understands and agrees that, in addition to the attorney fees referenced above, the Attorney shall be promptly reimbursed for all expenses and court costs incurred during the course of my representation.

5. Retainer. A $_________ retainer will be required for this case, which will be applied to the hourly fees and costs.

6. Attorney Billings. The Attorney will prepare and provide the Client with an itemized billing statement detailing hourly rates, times spent, tasks performed and cost incurred on a monthly basis. The Client should review each billing statement promptly and address any objection or error in a timely manner.

7. Termination. Representation will commence upon the signing of the engagement agreement. The Attorney will provide competent representation, which requires legal knowledge, skill, thoroughness, and preparation to handle those matters set forth above. The Attorney will keep the Client reasonably informed about the status of representation and will attempt to promptly respond to reasonable requests for information. The Attorney may at any time terminate representation of the Client for cause as determined in the sole discretion of the Attorney. It is agreed that the failure to make payments due on demand shall constitute authority for Attorney to withdraw or otherwise refrain from performing any further services. In the event Attorney withdraws, or be discharged by you, you agree to promptly pay at such time for any services rendered or unreimbursed.

8. The Client acknowledges that a copy of this agreement was received on signing this agreement. Dated: ____________, 20__ Dated: _____________, 20__ _____________________________ __________________________ , Client Eugenia C. Hunter, Attorney Eugenia C. Hunter Ill.Reg.No. 1287869 Attorney at Law 905 W. Cherry Carbondale, IL 62901 (618) 457-0476 (618) 457-0477-fax [email protected]

GUARDIANSHIP CHECKLIST Date Completed Initial interview _______________________ Representation Agreement signed _______________________ Retainer Paid _______________________ Physician’s Report Sent________________Returned__________________ Petition, Motion and Order for Guardian ad Litem filed ________________________ Summons with attachments to Sheriff ________________________ Respondent served ________________________ Correspondence with attachments to Guardian ad litem ________________________ Notice of Hearing or Sent ________________________ Appearance and consents Sent______________ Returned_______________ 1. [person] 2. 3. 4. 5. Final Documents (Order, Letters, Oath, Statement) prepared ________________________ Bond secured, if needed ________________________ Hearing Date ________________________ Reminder to client ________________________

STEP TWO

PHYSICIAN'S REPORT This report is requested for the purpose of determining whether a guardianship for your patient should be purposed. Chapter 740 Illinois Compiled Statutes 110/10 allows for the disclosure other otherwise confidential information to determine whether a guardianship is needed. PATIENT'S NAME: _______________________________________________ Physician's Name and Address: _____________________________________ Date of Late Examination of Patient: _________________________________ Description of the nature and type of patient's disability. Assessment of how the disability impacts on the ability of the patient to make decisions or to function independently: An analysis and result of evaluations of the respondent's mental and physical condition and where appropriate, educational condition, adaptive behavior and social skills, which have been performed with the past 3 months: Do you believe a guardianship is needed for this patient? _________________ If so, does the patient require a plenary guardian or a limited guardian? Please state the scope and extent of the guardianship you would recommend and the reasons for your recommendation: What is your recommendation as to the most suitable living arrangement of this patient and, where appropriate, treatment or habilitation plan for the patient and the reasons therefore: Date of this report: ______ Physician's Signature: ______________________ ____________________________Print Name___________________________ Signature(s) of all persons who performed the evaluations upon which the report is based. Statement of certification, license, or other credentials that qualify the evaluators who prepared the report: Please return to: Eugenia C. Hunter, Attorney at Law, 905 W. Cherry, Carbondale, IL 62901

STEP THREE

STATE OF ILLINOIS IN THE CIRCUIT COURT OF THE _____ JUDICIAL CIRCUIT

_________ COUNTY IN PROBATE

In the Matter of the Estate of ) ) ) No. -P- ) an alleged disabled person. )

PETITION FOR GUARDIAN

Now comes the petitioner, ________________, by her attorney, Eugenia C. Hunter, and for her petition for guardianship of the estate and person of _________________, states as follows:

1. The petitioner is the ______________ of the respondent.

2. ____________ whose place of residence is _________________

_____________________________________, was born on ________, 19__, and is disabled and incapable of managing his estate and person because of a ______________________________.

3. The respondent does not currently have a guardian.

4. The respondent has not appointed an agent or agents under the Illinois Power of Attorney Act.

5. The names and post office addresses of the respondent’s nearest adult relatives are: a) Spouse or adult children – _____________________ b) Parents, adult siblings:

6. The approximate value of the respondent’s estate: $____

7. The anticipated annual income of the respondent is $_____.00 from _____________. [The petitioner is the representative payee for these funds.]

8. The proposed guardian is _________________, _____________ ________________________________, age __, _____________ of the respondent, who is employed by the _____________________________.

# [The respondent is in need of residential placement because she ___________________________________, and a suitable placement is _________________________.]

9. The Report of Physician required pursuant to 755 ILCS 5/11a-9 is

being filed contemporaneously.

WHEREFORE, the petitioner, _____________, prays: a) the court appoint a guardian ad litem for the alleged disabled adult; b) that _________________ be adjudged a disabled person; c) that ____________________ who is ___ years old and employed as a

____________________________, qualified and willing to act, be appointed as guardian of the estate and person of __________________;

# [that the the guardian may place the respondent in a residential facility.] d) such further relief as the court deems just and equitable.

______________________________ Eugenia C. Hunter Attorney at Law Ill Reg. No. 1287869 905 W. Cherry Carbondale, IL 62901 (618) 457-0476 (618) 457-0477-fax

[email protected] Under penalties as provided by law pursuant to 735 ILCS 5/1-109, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that the undersigned verily believes the same to be true. ______________________________ Name of Petitioner

STATE OF ILLINOIS IN THE CIRCUIT COURT OF THE _______ JUDICIAL CIRCUIT

___________ COUNTY IN PROBATE

In the Matter of the Estate of ) ) ) No. -P- ) an alleged disabled person. )

MOTION FOR GUARDIAN AD LITEM (Version 1)

Petitioner, _______________, by his attorney, Eugenia C. Hunter, moves the court to enter an order appointing a guardian ad litem to protect the interests of ____________________, an alleged disabled person in the above-encaptioned guardianship matter. _________________________

Eugenia C. Hunter Attorney at Law Ill Reg. No. 1287869 905 W. Cherry Carbondale, IL 62901 (618) 457-0476 (618) 457-0477-fax

[email protected]

STATE OF ILLINOIS IN THE CIRCUIT COURT OF THE _______ JUDICIAL CIRCUIT

___________ COUNTY IN PROBATE In the Matter of the Estate of ) ) ) No. -P- ) an alleged disabled person. )

MOTION FOR GUARDIAN AD LITEM (Version 2)

Now comes the petitioner, ______________, by her attorney, ____________________, and moves for the appointment of a guardian ad litem for the alleged disabled adult and in support thereof states as follows:

1. The undersigned has contacted ______________, a licensed attorney

in the State of Illinois practicing in __________ County, who is experienced in matters concerning guardianship and alleged disabled adults.

2. The proposed guardian ad litem has agreed to act pro bono, as

guardian ad litem in this matter. WHEREFORE, the petitioner prays that a guardian ad litem, who will act

pro bono, be appointed.

_________________________ Eugenia C. Hunter Attorney at Law Ill Reg. No. 1287869 905 W. Cherry Carbondale, IL 62901 (618) 457-0476 (618) 457-0477-fax

[email protected]

STATE OF ILLINOIS IN THE CIRCUIT COURT OF THE _____ JUDICIAL CIRCUIT

________ COUNTY IN PROBATE In the Matter of the Estate of ) )

) No. -P- ) an alleged disabled person. )

ORDER APPOINTING GUARDIAN AD LITEM This matter having come on to be heard on the petitioner’s Motion for Appointment of a Guardian ad Litem; the court having reviewed said motion and being fully advised in the premises; finds: (1) That the appointment of a guardian ad litem is necessary for the protection of the alleged disabled adult; and (2) That _______________ is a qualified attorney practicing in ________ County, Illinois. IT IS THEREFORE ORDERED that _________________ be and hereby is appointed Guardian ad Litem for the alleged disabled adult. Dated this ____ day of ______________, 20__. _____________________________ JUDGE

STATE OF ILLINOIS IN THE CIRCUIT COURT OF THE ______ JUDICIAL CIRCUIT

_________ COUNTY In the Matter of the Estate of ) ) ) No. –P- ) an alleged disabled person. )

SUMMONS [HOLD FOR PICKUP] To each defendant: YOU ARE HEREBY SUMMONSED and required to appear before this court at ___________ County Courthouse, __________________, Illinois, at __________ o’clock, ___.m., on _____________________, 20__, to answer the complaint in this case, a copy of which is hereto attached. IF YOU FAIL TO DO SO, A JUDGMENT BY DEFAULT MAY BE TAKEN AGAINST YOU FOR THE RELIEF ASKED IN THE COMPLAINT. To the officer: This summons must be returned by the officer or other person to whom it was given for service, with indorsement of service and fees, if any, immediately after service and not less than 3 days before the day for appearance. If service cannot be made, this summons shall be returned so indorsed. This summons may not be served later than 3 days before the day for appearance. (Seal of Court) Witness______________________ _____________________________ (Clerk of the Circuit Court) (Plaintiff’s attorney or plaintiff if he is not represented by an attorney) Eugenia C. Hunter Ill.Reg.No. 1287869 Attorney for Petitioner 905 W. Cherry Carbondale, IL 62901 (618) 457-0476 (618) 457-0477-fax [email protected]

STATE OF ILLINOIS

IN THE CIRCUIT COURT OF THE ______ JUDICIAL CIRCUIT _________ COUNTY

In the Matter of the Estate of ) ) ) No. –P- ) an alleged disabled person. )

NOTICE OF RIGHTS OF RESPONDENT You have been named as a respondent in a guardianship petition asking that you be declared a disabled person. If the court grants the petition, a guardian will be appointed for you. A copy of the guardianship petition is attached for your convenience. The date and time of the hearing are ____________, 200__ at ______ __.m. The place where the hearing will occur is _________ County Courthouse, ______________________________________(address). The Judge's name and phone number are _________________. If a guardian is appointed for you, the guardian may be given the right to make all important personal decisions for you, such as where you may live, what medical treatment you may receive, what places you may visit, and who may visit you. A guardian may also be given the right to control and manage your money and other property, including your home, if you own one. You may lose the right to make these decisions for yourself. You have the following legal rights: (1) You have the right to be present at the court hearing. (2) You have the right to be represented by a lawyer, either one that you retain, or one appointed by the Judge. (3) You have the right to ask for a jury of six persons to hear your case. (4) You have the right to present evidence to the court and to confront and cross-examine witnesses.

(5) You have the right to ask the Judge to appoint an independent expert to examine you and give an opinion about your need for a guardian. (6) You have the right to ask that the court hearing be closed to the public. (7) You have the right to tell the court whom you prefer to have for your guardian. You do not have to attend the court hearing if you do not want to be there. If you do not attend, the Judge may appoint a guardian if the Judge finds that a guardian would be of benefit to you. The hearing will not be postponed or canceled if you do not attend. IT IS VERY IMPORTANT THAT YOU ATTEND THE HEARING IF YOU DO NOT WANT A GUARDIAN OR IF YOU WANT SOMEONE OTHER THAN THE PERSON NAMED IN THE GUARDIANSHIP PETITION TO BE YOUR GUARDIAN. IF YOU DO NOT WANT A GUARDIAN OR IF YOU HAVE ANY OTHER PROBLEMS, YOU SHOULD CONTACT AN ATTORNEY OR COME TO THE COURT AND TELL THE JUDGE.

STEP FOUR

STATE OF ILLINOIS IN THE CIRCUIT COURT OF THE _______ JUDICIAL CIRCUIT

___________ COUNTY In the Matter of the Estate of ) ) ) No. -P- ) an alleged disabled person. )

ENTRY OF APPEARANCE NOW COMES _____________________, Attorney at Law, ____________________, Illinois, and hereby enters her appearance as Guardian ad Litem, having been duly appointed by the Court to act on behalf of the alleged disabled person, ________________, in the above-referenced matter. Notices of all hearings and copies of all other pleadings should be sent to the undersigned at the address noted below. _____________________________ Sally Attorney Ill Reg. No. _________ Guardian ad Litem Address Phone Fax Email

STATE OF ILLINOIS

IN THE CIRCUIT COURT OF THE ______ JUDICIAL CIRCUIT _________ COUNTY

In the Matter of the Estate of ) ) ) No. –P- ) an alleged disabled person. )

NOTICE OF HEARING TO: [Relatives listed in petition who have not waived notice and attorneys of record] PLEASE TAKE NOTICE that on _____________, 20__, at ____ __.m. or as soon thereafter as counsel may be heard, I shall appear before the Honorable ________________ or any judge sitting in his stead at the ______ County Courthouse in ______________, Illinois, and present the attached Petition for Guardian. _____________________________ _____________________________ Eugenia C. Hunter Attorney at Law Ill Reg. No. 1287869 905 West Cherry Carbondale, IL 62901 (618) 457-0476 (618) 457-0477-fax [email protected]

CERTIFICATE OF SERVICE The undersigned certifies that a copy of the foregoing document was served upon the parties in the above cause of electronic/email to those shown below with email addresses and upon those others shown below by enclosing the same in an envelope addressed to such parties at their address as disclosed by the pleadings of record herein and shown below, with postage fully prepaid, and by depositing said envelopes in a U.S. Post Office mailbox in _____________, Illinois on the ___ day of __________, 20__. [attorneys of record] [Relatives listed in petition] _________________________________ Eugenia C. Hunter

STATE OF ILLINOIS IN THE CIRCUIT COURT OF THE ______ JUDICIAL CIRCUIT

_________ COUNTY In the Matter of the Estate of ) ) ) No. –P- ) an alleged disabled person. )

APPEARANCE AND CONSENT FOR LETTERS APPOINTING GUARDIAN

I, ________________________. _________________ (relationship) of the alleged disabled person, state that I am under no legal disability and so hereby appear, waive notice and consent to the immediate appointment of _________________ (guardian) as guardian of the person and estate of ____________________ (alleged disabled person). _____________________________ [Name] [Address] Subscribed and sworn to before me this ___ day of ____________, 20__. ______________________________ Notary Public

STEP SIX

STATE OF ILLINOIS

IN THE CIRCUIT COURT OF THE ______ JUDICIAL CIRCUIT _________ COUNTY

In the Matter of the Estate of ) ) ) No. –P- ) A Disabled Person. )

ORDER APPOINTING GUARDIAN [Plenary] This matter comes on for hearing on Petition of Guardian of an alleged disabled adult. Present in open court is petitioner, _____________, with counsel, ___________________. The guardian ad litem for ___________________ has filed a written report and is present. The alleged disabled adult does [does not] appear, having been served with summons on _________________, 20__. The court having heard the testimony, having reviewed the report of guardian ad litem and all other pleadings on file, finds as follows: 1. _________________ is a disabled person within the meaning of Section 11a-2 of the Illinois Probate Act. 2. Appointment of a guardian of the person and estate of _____________________ is necessary as provided in Section 11a-3 of the Illinois Probate Act. # [Residential placement is necessary to serve the best interest of ______________.] 3. _______________ is willing, able and otherwise qualified to act as Guardian, has presented her oath and bond which have been approved. IT IS THEREFORE ORDERED: 1. That the appointment of a guardian of the person and estate of _________________ is in ___ best interest. 2. That ___________ who has presented ___ oath and bond is appointed guardian of the person and estate of ______________.

# [That the guardian may place _______________ in ________________ residential facility without further order on the following conditions _______________________________________________________.] 3. The guardian shall file an annual report with the court. 4. Letters of guardianship of the person and estate of ___________ shall issue to ____________. Dated this ____ day of _______________, 2016. _____________________________ JUDGE

STATE OF ILLINOIS IN THE CIRCUIT COURT OF THE ______ JUDICIAL CIRCUIT

_________ COUNTY In the Matter of the Estate of ) ) ) No. –P- ) A Disabled Person. )

OATH AND BOND OF REPRESENTATIVE-NO SURETY

I, ________________, on oath state that I will discharge faithfully the duties of the office of representative, and I bind myself to the People of the State of Illinois to the faithful discharge of those duties. The obligation of this bond is limited to $_____________. ______________________________ Name Address Under penalties as provided by law pursuant to 735 ILCS 5/1-109, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that the undersigned verily believes the same to be true. ______________________________ Name Approved: ______________, 20__ ______________________________ Eugenia C. Hunter JUDGE Attorney at Law Ill. Reg. No. 1287869 905 W. Cherry Carbondale, IL 62901 (618) 457-0476 (618) 457-0477-fax [email protected]

STATE OF ILLINOIS

IN THE CIRCUIT COURT OF THE ______ JUDICIAL CIRCUIT _________ COUNTY

In the Matter of the Estate of ) ) ) No. –P- ) A Disabled Person. )

LETTERS OF OFFICE – GUARDIAN _______________ has been appointed guardian of the person and estate of _______________ and is authorized to have under the direction of the court the custody of the ward and to do all acts required of her by law. ____________________, 20__ _________________________________ Clerk of the Circuit Court I certify that this is a copy of the letters of office now in force in the state. _____________________, 20__ _________________________________ Clerk of the Circuit Court Eugenia C. Hunter Attorney at Law Ill Reg. No. 1287869 905 W. Cherry Carbondale, IL 62901 (618) 457-0476 (618) 457-0477-fax [email protected]

STATE OF ILLINOIS IN THE CIRCUIT COURT OF THE ______ JUDICIAL CIRCUIT

_________ COUNTY In the Matter of the Estate of ) ) ) No. –P- ) A Disabled Person. )

STATEMENT OF RIGHT TO DISCHARGE GUARDIAN OR MODIFY GUARDIANSHIP ORDER

To: [Respondent] As a result of a proceeding in the Probate Division of the Circuit Court of _____________ County, you have been adjudged a disabled person, and a guardian has been appointed for you. The duties of your guardian have also been determined in this proceeding. If at any time hereafter, you should find that your capacity to perform the tasks necessary for the care of your person or the management of your estate have changed so as to warrant the discharge of your guardian or the modification of your guardian’s duties, you may petition the Court for such an Order. You may communicate your request for an Order of Discharge or Modification by writing to the Judge of the Probate Division ________________ County Courthouse, ___________________________, _________________, Illinois. Please send a copy of any such request to the guardian appointed for you and to the guardian’s attorney of record. Dated: ___________________ Enter: ______________________________ JUDGE

CERTIFICATION OF SERVICE [CLERK] certifies that [HE/SHE] served the aforementioned Statement of

Right to Discharge Guardian or Modify Guardianship Order to [WARD] by placing a copy into first class mail at _______________, Illinois, no later than 5:00 p.m. on __________________, 20__. Date: _______________, 20__ ________________________________ [CLERK] Eugenia C. Hunter Ill.Reg.No. 1287869 Attorney for Petitioner 905 W. Cherry Carbondale, IL 62901 (618) 457-0476 (618) 457-0477-fax [email protected]