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Guardianship Estates for Disabled Adults Protecting Our Fragile Citizens By Honorable Robert Emmett Byrne Most people think of the Probate Court as a place where the assets of the dead are gathered, accounted for and redistributed. While it is true that our local Probate Court has approximately 1500 decedents’ estates pending at any given moment, that fact overlooks the very important function of the court in protecting the persons and assets of minors and disabled adults. Since minors lack the capacity to hold money in their own name or to provide themselves with shelter and care, it is often necessary to have a guardian of their person or estate appointed when they receive money through inheritance, bequest or compensation for an injury. When it becomes in the best interest of a minor to live apart from his or her parents a Petition may be filed in the Probate Court for a guardianship enabling the Guardian to enroll the minor in school and obtain health insurance. The third major area of activity of the Probate Court is in the legal establishment and control of estates for persons over 18 years of age who lack the capacity to make the decisions necessary to manage their lives and their assets. Some of these people are persons who were born with birth defects and who have attained their majority, but most are older men and women who because of illness or old age have lost the capacity to manage their affairs. There has been much written of late of the graying of America and some important facts have come to light: • There are 1.9 million people in Illinois over the age of 60. This is up 9% from 1980 to 1990 and will increase by 40% by 2020 with most of the growth in Cook and the Collar Counties. • The fastest area of population growth in the United States is among those persons over the age of 85. Approximately 50% of people over age 85 suffer some degree of cognitive impairment. • In Illinois there is an incident of elder abuse, neglect or exploitation every 7 minutes and only one incident in 12 is reported. All of the above facts indicate that an increasing amount of attention will be required for our elder citizens in the coming years and that Guardians for the Estates and Persons of the Disabled will be an important vehicle to provide that attention. Presently, there are about 500 Estates for Disabled Adults pending in our Probate Court. Section XI of the Probate Act (755ILCS 5/11a) sets out the requirements to establish and maintain such an estate. Generally, a probate estate is opened by the filing of a Petition for Adjudication of Disability which sets out certain information such as the relationship and interest of the Petitioner; the name, date of birth and place of residence of the Respondent; the reasons for the guardianship; the name and address of the respondent’s guardian, if any, and the name and addresses of the Respondent’s nearest relatives; the approximate value of the personal and real estate; the name, address and occupation of the proposed Guardian. The Estate Petition should be accompanied by a report which contains a description of the nature and the degree of the respondent’s disability, recent evaluations of the mental and physical condition of the respondent, an opinion as to whether guardianship is needed and, if so, the scope of same and a recommendation as to the best living situation for the respondent. The report must bear the signature of a physician. If, for some reason, the Petition does not attach a report the court shall order a report to be prepared by a qualified person and filed within 10 days. If the Petition and the report are in order the court will appoint a Guardian Ad Litem (GAL) to represent the Respondent and set the matter for report of the GAL and hearing on the Petition within 30 days. Often, the court will appoint a Temporary Guardian pending the final hearing on the petition. Normally, the Guardian Ad Litem will be an attorney who offices or lives near the Respondent. The GAL visits the Respondent and the Temporary Guardian, reviews the medical and financial records of the respondent and submits a written report to the court containing a recommendation as to the petition. If the GAL’s recommendation is consistent with the petition the court will proceed to appoint the permanent Guardian. If the GAL disagrees with the Petitioner the court will set the matter down for a full evidentiary hearing. When the court finally gets to the point where the petition is granted, the Guardian of the Person and Estate then presents an Oath of Office and a Surety Bond (if there is a court-ordered guardianship of the estate) and the court enters an order appointing the Guardian, requiring the filing of an inventory of the estate’s assets within 60 days and setting a date for the filing of an annual report and inventory usually 12 months from the date when the Petition was filed. The Court requires the filing of this Annual Report and Accounting, but to date there has been no device or procedure available for the court to monitor the care and attention that the Guardian renders to the Ward. As in all human nature, there is a great range of ability and interest among the approximately 550 persons serving as guardians in our county. Some are extremely competent and enthusiastic about their office, while others are limited in their ability and availability. The court is concerned that Wards are receiving adequate supervision and even though there is no pattern of deficient care in DuPage County there has been interest in finding some proactive vehicle to maintain better contact with those persons involved in guardianship estates. Recently, our Circuit Court established a new program—the first of its kind in the state—to insure that our most fragile citizens are being cared for at acceptable levels. The program is called Court Friends and it provides for the training of volunteers to monitor the Wards and Guardians prior to the date of the annual report and to advise the Probate Court Judge of any problems or areas where the Guardian may need assistance. In those situations where the Ward has substantial assets the Annual Accounting is reviewed by Auditor Volunteers who are retired trust and business executives. The volunteers act as the "eyes and ears" of the court and are trained along guidelines established in conjunction with the American Association of Retired Persons (AARP). Program participants do three projects for the Probate Court. Most are "visitors" who go and see the disabled adults (Wards) and their Guardians. They then report back to the court noting any problems or recommendations for changes which will improve the quality of life for all parties. These reports are submitted to the judge approximately 15 to 30 days before the Annual Report is due. The judge is then able to contact the DuPage County Department of Human Services so that possible assistance can be presented to the Guardian at the time the annual report is due. Other volunteers are "record researchers" who check the court records and update current addresses of the wards and guardians before each case is assigned to a visitor. The "auditor" volunteers conduct audits of disabled persons’ estates. It is estimated that less than 25% of the estates will require audits. There are no tax dollars expended on this program. It is operated at no cost entirely through the volunteer efforts of the participants. While almost all of our GALs are attorneys, none of the Court Friends volunteers are attorneys. Many are retired and represent a great diversity of professional and business experience which makes them well qualified to carry out their assigned responsibilities. Through the enthusiasm and wisdom of our Court Friends volunteers, many of our Guardians and Wards have been able to receive assistance and information which was previously unavailable. The Court Friends Volunteer Coordinator, Albert C. Koontz, is a retired attorney/bank trust executive. The first months of this endeavor indicate that it is meeting its goals of providing greater care for our fragile citizens and keeping our local court system on the cutting edge of elder care in the United States. Honorable Robert Emmett Byrne is the Presiding Judge of the Chancery Division. He serves as DuPage County’s Probate Judge. He received his Undergraduate Degree in 1964 and his Law Degree in 1967 from Loyola University-Chicago.
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