Illinois Guardianship Law: Differences in Guardianship over the Estate vs. Guardianship over the Person in Illinois

Cari Rincker Guardianship law Leave a Comment

Being someone’s guardian can be an overwhelming new journey. Understanding what is expected of you in this new role is the best way to reduce any apprehensions so that you can care for your loved one in need. In the State of Illinois, guardianship is split into two separate types. Just like you need a Power of Attorney to appoint someone to make your financial  decisions when you cannot AND a Healthcare Proxy and Living Will (or Medical Power of Attorney) to appoint someone to make your healthcare decisions, you need to be separately appointed by a court to help care for an incapacitated person’s, also called a ward, property and to make their medical decisions. A Guardian of the Estate allows you to make someone’s financial decisions while being a Guardian of the Person allows you to make their healthcare decisions. Guardianship of the Estate and Guardianship of the Person have very distinct and separate roles. Additionally, the roles of being a guardian of an adult and guardian of a minor are defined separately in the Illinois statutes.

Guardianship of the Estate

 Illinois Statute 755 ILCS 5/11a-18(a) defines the role of a Guardian of the Estate of an adult as follows:

“the guardian of the estate shall have the care, management and investment of the estate, shall manage the estate frugally and shall apply the income and principal of the estate so far as necessary for the comfort and suitable support and education of the ward, his minor and adult dependent children, and persons related by blood or marriage who are dependent upon or entitled to support from him, or for any other purpose which the court deems to be for the best interests of the ward, and the court may approve the making on behalf of the ward of such agreements as the court determines to be for the ward’s best interests. The guardian may make disbursement of his ward’s funds and estate directly to the ward or other distributee or in such other manner and in such amounts as the court directs.’

Additionally, the guardian of the estate can ask the court for authority “to exercise any or all powers over the estate and business affairs of the ward that the ward could exercise if present and not under disability” as well as “represent the ward in all legal proceedings” and “perform the contracts of his ward which were legally subsisting at the time of the commencement of the ward’s disability” 755 ILCS 5/11a-18(a-5 – c).

The Illinois Statues define the role of being a Guardian of the Estate of a Minor with the same language, but is defined under 755 ILCS 5/11-13(b-d).

 Guardianship of the Person

Illinois Statute 755 ILCS 5/11a-17(a) defines the role of a Guardian of the Person of an Adult as follows:

“the guardian of the person shall have custody of the ward and the ward’s minor and adult dependent children and shall procure for them and shall make provision for their support, care, comfort, health, education and maintenance, and professional services as are appropriate… The guardian shall assist the ward in the development of maximum self-reliance and independence.”

Being the Guardian of the Person of a Minor is defined slightly differently under Illinois Statute 755 ILCS 5/11-13(a) and is defined as followed:

“The guardian of the person shall have the custody, nurture and tuition and shall provide education of the ward and of his children, but the ward’s spouse may not be deprived of the custody and education of the spouse’s children, without consent of the spouse, unless the court finds that the spouse is not a fit and competent person to have such custody and education.”

If you think a loved one needs a guardian and you are looking for assistance with becoming their guardian, contact our law office and schedule a consultation today.

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