i prepared a 'cheat sheet' just like we used to in our school days. You may publish it and share even with the miscreants. The Illinois Statute was designed by our legislature to diligently protect the rights of senior citizens and the disabled. Cases like Sykes, Gore, Wyman, Tyler et al should never have occurred. My hope is that by sharing this document we can obviate any inadvertent "elder cleansing."
I. Basis for appointing a Guardian or declaring a person in need:
1. Demonstration of need for Guardian;
a. if it has been demonstrated by clear and convincing evidence that because of his disability he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the care of his person, 755 Ill. Comp. Stat. Ann. 5/11a-3 (West)
b. if it has been demonstrated by clear and convincing evidence that because of his disability he is unable to manage his estate or financial affairs 755 Ill. Comp. Stat. Ann. 5/11a-3 (West)
2. Venue: Venue. If the alleged ward is a resident of this State, the proceeding shall be instituted in the court of the county in which he resides. 755 Ill. Comp. Stat. Ann. 5/11a-7 (West)
3. Petition: The petition for adjudication of disability and for the appointment of a guardian of the estate or the person or both of an alleged disabled person must state, if known or reasonably ascertainable: (a) the relationship and interest of the petitioner to the respondent; (b) the name, date of birth, and place of residence of the respondent; (c) the reasons for the guardianship; (d) the 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,1 if any; (e) the name and post office addresses of the nearest relatives of the respondent in the following order: (1) the spouse and adult children, parents and adult brothers and sisters, if any; if none, (2) nearest adult kindred known to the petitioner; (f) the name and address of the person with whom or the facility in which the respondent is residing; (g) the approximate value of the personal and real estate; (h) the amount of the anticipated annual gross income and other receipts; (i) the name, post office address and in case of an individual, the age, relationship to the respondent and occupation of the proposed guardian 755 Ill. Comp. Stat. Ann. 5/11a-8 (West)
4. Procedure: Upon the filing of a petition pursuant to Section 11a-8, the court shall set a date and place for hearing to take place within 30 days. The court shall appoint a guardian ad litem to report to the court concerning the respondent's best interests consistent with the provisions of this Section, 55 Ill. Comp. Stat. Ann. 5/11a-10 (West)
5. Payment of Fees: “the court may enter an order for the petitioner to pay all such fees or such amounts as the respondent or the respondent's estate may be unable to pay 755 Ill. Comp. Stat. Ann. 5/11a-10 (West)
2. Right of alleged disabled person to trial.
Respondent is entitled to be represented by counsel, to demand a jury of 6 persons, to present evidence, and to confront and cross-examine all witnesses. The hearing may be closed to the public on request of the respondent, the guardian ad litem, or appointed or other counsel for the respondent. 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. 755 Ill. Comp. Stat. Ann. 5/11a-11 (West)
Right to Counsel “b) The court (1) may appoint counsel for the respondent, if the court finds that the interests of the respondent will be best served by the appointment, and (2) shall appoint counsel upon respondent's request or if the respondent takes a position adverse to that of the guardian ad litem. The respondent shall be permitted to obtain the appointment of counsel either at the hearing or by any written or oral request communicated to the court prior to the hearing. The summons shall inform the respondent of this right to obtain appointed counsel. The court may allow counsel for the respondent reasonable compensation. “ 755 Ill. Comp. Stat. Ann. 5/11a-10 (West)
3. Criterion for the form of Summons
The summons shall be printed in LARGE, BOLD TYPE and shall include the following notice:
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:
The place where the hearing will occur is:
The Judge's name and phone number is: 755 Ill. Comp. Stat. Ann. 5/11a-10 (West)
4. Utilization of the Statutory authority..
(b) Guardianship shall be utilized only as is necessary to promote the well-being of the disabled person, to protect him from neglect, exploitation, or abuse, and to encourage development of his maximum self-reliance and independence. Guardianship shall be ordered only to the extent necessitated by the individual's actual mental, physical and adaptive limitations. 755 Ill. Comp. Stat. Ann. 5/11a-3 (West)
5. Right to Counsel:
“(b) The court (1) may appoint counsel for the respondent, if the court finds that the interests of the respondent will be best served by the appointment, and (2) shall appoint counsel upon respondent's request or if the respondent takes a position adverse to that of the guardian ad litem. THE RESPONDENT SHALL BE PERMITTED TO OBTAIN THE APPOINTMENT OF COUNSEL EITHER AT THE HEARING OR BY ANY WRITTEN OR ORAL REQUEST COMMUNICATED TO THE COURT PRIOR TO THE HEARING. The summons shall inform the respondent of this right to obtain appointed counsel. The court may allow counsel for the respondent reasonable compensation.” 755 Ill. Comp. Stat. Ann. 5/11a-10 (West)
6. Appointment Temporary and Notice to the disabled person.
§ 11a-19. Notice of right to seek modification. At the time of the appointment of a guardian the court shall inform the ward of his right under Section 11a-20 to petition for termination of adjudication of disability, revocation of the letters of guardianship of the estate or person, or both, or modification of the duties of the guardian and shall give the ward a written statement explaining this right and the procedures for petitioning the court. The notice shall be in large, bold type and shall be in a format similar to the notice of rights required under subsection (e) of Section 11a-10 of this Act. 755 Ill. Comp. Stat. Ann. 5/11a-19 (West)
7. Service of Summons on the alleged disabled person[1]:
the respondent shall be personally served with a copy of the petition and a summons not less than 14 days before the hearing. The summons shall be printed in large, bold typeand shall include the following notice:
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:
The place where the hearing will occur is:
The Judge's name and phone number is:
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.
(f) Notice of the time and place of the hearing shall be given by the petitioner by mail or in person to those persons, including the proposed guardian, whose names and addresses appear in the petition and who do not waive notice, not less than 14 days before the hearing. 755 Ill. Comp. Stat. Ann. 5/11a-10 (West)
[1] Paragraph 11a- 10 also requires the following warning, to with:
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 OF IF YOU HAVE ANY OTHER PROBLEMS, YOU SHOULD CONTACT AN ATTORNEY OR COME TO COURT AND TELL THE JUDGE. 755 Ill. Comp. Stat. Ann. 5/11a-10 (West)
[2] The court acquires jurisdiction over the allegedly disabled person by personal service upon him of a copy of the petition and summons not less than 14 days before the hearing. (Ill.Rev.Stat.1989, ch. 110½, par. 11a–10(e); see McCormick v. Blaine (1931), 345 Ill. 461, 178 N.E. 195.) It is also a jurisdictional requirement that the petitioner give notice of the time and place of the hearing by mail or in person to the nearest living relatives of the allegedly disabled person not less than 14 days before the hearing. Ill.Rev.Stat.1989, ch. 110½, par. 11a–10(f); see In re Guardianship of Sodini (1988), 172 Ill.App.3d 1055, 123 Ill.Dec. 67, 527 N.E.2d 530. In re Estate of Steinfeld, 158 Ill. 2d 1, 13, 630 N.E.2d 801, 807 (1994)
Just about everything above is a quote. The Illinois legislature did themselves proud with this statutory plan; however, as it was virtually ignored in so many cases it makes one wonder if legislation is necessary at all. Certainly in the Sykes case no one read it and for four years Mary Sykes was robbed of all her liberty and property rights. In Gore a 1.5 million dollar estate (and a few pennies in gold filings) was dissipated by ignoring these statutory rights.
Ken Ditkowsky
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