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Guardianship JoHn Lafond and Deb feinen Guardianship JoHn Lafond and Deb feinen

Guardianship JoHn Lafond and Deb feinen - PowerPoint Presentation

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Uploaded On 2018-10-11

Guardianship JoHn Lafond and Deb feinen - PPT Presentation

Legal Standard Sec 11a2 Person with a disability defined Person with a disability means a person 18 years or older who a because of mental deterioration or physical incapacity is not fully able to manage his person or estate or b is a person with mental illness or a person with a deve ID: 687890

person respondent hearing guardianship respondent person guardianship hearing estate court report guardian disability client petition capacity mental medical notice summons date lawyer

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Slide1

Guardianship

JoHn Lafond and Deb feinenSlide2

Legal Standard

Sec. 11a-2. "Person with a disability" defined. "Person with a disability" means a person 18 years or older who (a) because of mental deterioration or physical incapacity is not fully able to manage his person or estate, or (b) is a person with mental illness or a person with a developmental disability and who because of his mental illness or developmental disability is not fully able to manage his person or estate, or (c) because of gambling, idleness, debauchery or excessive use of intoxicants or drugs, so spends or wastes his estate as to expose himself or his family to want or suffering, or (d) is diagnosed with fetal alcohol syndrome or fetal alcohol effects.

(Source: P.A. 99-143, eff. 7-27-15.) Slide3

Who May Serve as Guardian

An Individual (or Co-Guardians)

capable of providing an active and suitable program of guardianship for the person with a disability and

Is age 18 years;

Is a resident of the United States;

Is not of unsound mind;

Is not an adjudged person with a disability

Has not been convicted of a felony (with exceptions)

A Corporation qualified to manage Trusts (for Guardian of the Estate only)

Any public agency, or not-for-profit corporation found capable by the courtSlide4

Types of Guardianship

Temporary

Permanent

Estate

Person

With or without residential placement authority

Limited Slide5

Ethics

Can you represent family in seeking Guardianship of your elderly client

May you reveal information about your elderly client’s capacitySlide6

Ethics

RPC 1.14: CLIENT WITH DIMINISHED CAPACITY

When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.

Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.Slide7

Steps for Guardianship

Initial letter

Meeting with clients

Intake Form

Medical Report

Motion to Seal

Petition

Summons

Appointment of Guardian Ad Litem

Notice of Hearing

Hearing

Order

Oath and Bond

Notice of Right to Seek Discharge

Inventory (Estate only)

ReportingSlide8

Medical Report

Must Contain: (1) a description of the nature and type of the respondent's disability and an assessment of how the disability impacts on the ability of the respondent to make decisions or to function independently; (2) an analysis and results of evaluations of the respondent's mental and physical condition and, where appropriate, educational condition, adaptive behavior and social skills.

Must have been performed within 3 months of the date of the filing of the petition;

Must contain an opinion as to whether guardianship is needed, the type and scope of the guardianship needed, and the reasons therefore; a recommendation as to the most suitable living arrangement and, where appropriate, treatment or habilitation plan for the respondent and the reasons therefore;

Must contain the name, business address, business telephone number, and signatures of all persons who performed the evaluations upon which the report is based, one of whom shall be a licensed physician and a statement of the certification, license, or other credentials that qualify the evaluators who prepared the report.

Court may Order evaluation and report to be filed with court at least 10 days prior to hearing.

Respondent is entitled to an independent exam if he/she so requests one or if Court orders.

Statute states that Medical Report is not public record however a Motion to Seal is good practice.Slide9

Venue

Sec. 11a-7. Venue.

If Respondent is an Illinois resident proper venue is the court of the county in which Respondent resides.

If the Respondent is not a resident of this State, proper venue is a county in which his real or personal estate is located. Slide10

Costs

Assessing Costs

Fee Waiver Motions

Financial AffidavitSlide11

Petition Requirements

Sec. 11a-8. The Petition Must Contain if known or reasonably ascertainable:

relationship and interest of the petitioner to the respondent;

name, date of birth, and place of residence of the respondent

reasons for the guardianship

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, if any

name and post office addresses of the nearest relatives of the respondent

name and address of the person with whom or the facility in which the respondent is residing;

approximate value of the personal and real estate and the amount of the anticipated annual gross income and other receipts

name, post office address and in case of an individual, the age, relationship to the respondent and occupation of the proposed guardian

.Slide12

Summons

Statutory Requirements on Summons Form

Obtain Hearing Date from Court (date certain Summons)- date must be within 30 days of filing of Petition

Must be served more than 14 days prior to hearing for Permanent Guardianship

Must be served prior to Temporary Guardianship hearing on whatever notice allowed by JudgeSlide13

Role of Guardian Ad Litem

Court Appointed

Provide Notice of Rights, copy of Petition and Medical Report

Be the Court’s eyes and ears

Review documentation

Meet with Respondent

Interview proposed Guardian

Interview others (family, doctors, neighbors etc.)

Determine Respondent’s position on appointment of guardian, placement and other issues

Determine what is in Respondent’s best Interest

Determine if appointed Counsel is needed because Respondent is objecting to Guardianship

Prepare written reportSlide14

Appointed Attorney

Court may appoint Counsel for respondent if the interests of the respondent will be best served by the appointment

Court shall appoint counsel upon respondent's request or if the respondent takes a position adverse to that of the guardian ad litemSlide15

Hearing

Sec. 11a-11. Hearing.

The Respondent is entitled to:

be represented by counsel

demand a jury of 6 persons

present evidence, and to confront and cross-examine all witnesses

The hearing may be closed to the public upon request

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. Slide16

Hearing

Doctor must appear at any contested hearing unless presence is waived

Petitioner must prove by Clear and Convincing Evidence that Guardianship is needed

The Court Examines:

nature and extent of respondent's general intellectual and physical functioning

extent of the impairment of his adaptive behavior if he is a person with a developmental disability, or the nature and severity of his mental illness if he is a person with mental illness;

understanding and capacity of the respondent to make and communicate responsible decisions concerning his person;

capacity of the respondent to manage his estate and his financial affairs;

appropriateness of proposed and alternate living arrangements;

impact of the disability upon the respondent's functioning in the basic activities of daily living and the important decisions faced by the respondent or normally faced by adult members of the respondent's community;

any other area of inquiry deemed appropriate by the court. Slide17

Miscellaneous Issues

Right of family to intervene

Sterilization of Ward

Sale of House

Estate Planning

Residential Placement

Suspension of Driver’s License

Orders of ProtectionSlide18

Post Hearing

Entry of Order

Residential Placement

Limited or Plenary

Temporary or Permanent

Oath and Bond

Notice of Right to Seek DischargeSlide19

Reporting

Inventory- within 60 days

Report per Court Order but no less than every 3 years

Estate Guardian – keep records, receipts, bank statements etc.Slide20

Forms

Intake

Medical Report

Petition for Guardianship of the Person & Estate

Motion to Seal – Medical Report

Summons

GAL Notice of Rights/Entry of Appearance

Order for Plenary Guardianship of the Person and Estate

Oath and Bond

Inventory

Annual ReportSlide21

QUESTIONS