A Practitioner's Guide To Adult Guardianship In Illinois
VI. Emergency Situations
A. Temporary Guardianship
As an emergency procedure for use before a full adjudication on the merits, temporary guardianship is available to protect the person or estate of an alleged person with disability. Section 11a-4. Temporary guardianship may also be used to protect a ward when proceedings have been brought to remove a guardian who is acting against the best interests of the ward or the ward's estate. Although orders may be entered ex parte, or without notice to the alleged person with disability, Cook County judges tend to insist on the appointment of a guardian ad litem. Cook County courts also prefer to have service of notice on the respondent by the petitioner. However, other courts may be less stringent. A condition to filing for temporary guardianship is the simultaneous or prior filing of a petition for adjudication of disability - either plenary or limited. Consequently, in most cases the temporary appointment is followed or replaced by a permanent one.
Temporary guardianship should not be used to circumvent plenary or limited guardianship procedures, although many downstate jurisdictions do so. Temporary guardianships are typically entered for 30 day periods or until the hearing for plenary of limited guardianship. Orders may be extended, but are statutorily limited to 60 days. The only duties of a temporary guardian are ones specifically described on the face of the temporary order. Courts should be reluctant to enter temporary guardianship orders absent true emergencies, but are generally accommodating if a real danger exists. A typical time frame for obtaining an order is two or three days from the filing of a petition, although other arrangements may be made in dire cases.
Orders of protection are defined under the Illinois Domestic Violence Act of 1986 (IDVA), 750 ILCS 60/101, et seq. Section 11a-10.1 of the Probate Act incorporates the provisions of the IDVA by reference. The Probate Act provides that all IDVA procedures for the issuance, enforcement and recording of orders of protection will also be available in guardianship cases. Consequently, an order of protection may be joined together with a plenary or temporary petition for adjudication of disability, and a court may enter both orders of protection and orders appointing guardians in the same proceeding.
Under the IDVA, any person abused by a family or household member or any high-risk adult with disabilities who is abused, neglected, or exploited by a family or household member, among others, are subject to court ordered protection. The IDVA defines high-risk adult with disabilities to mean a person age 18 or over whose physical or mental disability impairs his or her ability to seek or obtain protection from abuse, neglect, or exploitation. The IDVA defines adults with disabilities to mean either an elder adult with disabilities or a high-risk adult with disabilities. Elder adults with disabilities include adults prevented by advanced age from taking appropriate action to seek protection from abuse by a family or household member.
The IDVA also provides that a person may be considered to be an adult with disabilities for the purposes of the Act even though he or she has never been adjudicated an incompetent adult (or adjudicated disabled within the meaning of the Probate Act).
The Probate Act supplements the IDVA in two basic ways. First, section 11a-10.1 provides that an order of protection may be used in concert with a proceeding for an adjudication of disability and appointment of guardian if a petition for an order of protection alleges that a person who is party to or the subject of the proceeding has been abused by or has abused a family or household member or has been neglected or exploited as defined in the IDVA.
Second, section 11a-10.1 provides that if the subject of the order of protection is a high-risk adult with disabilities for whom a guardian has been appointed, the court may appoint a temporary substitute guardian. In addition, the court is actually required to appoint a temporary substitute guardian if the appointed guardian is named as a respondent in a petition for an order of protection under the IDVA.
Problems that in the past may have been attacked with the filing of a temporary guardianship petition may now, in some cases, be handled without resort to guardianship. Before racing into court to obtain temporary guardianship, practitioners should thoroughly investigate the existence of a Living Will, Power of Attorney, or similar advance directive. In addition, in many cases the Health Care Surrogate Act may provide an adequate legal means to address important medical issues for the terminally ill.
However, practitioners should also be cautioned against creating advance Living Wills, Powers of Attorney, or advance directives for persons of limited capacity. The ethical considerations of urging a client or a client?s relative to sign such a document in an effort to solve a problem that might more properly require the attention of a probate court should be considered.