The Challenges of Establishing an Alternative Decision Maker

Guardianship is a complex subject that involves many disciplines with an individual’s capacity ultimately determined through a legal process.  When a person reaches the age of maturity, 18, they are automatically considered competent. Our society preserves people’s rights to make choices for themselves unless they are proven in a court of law to lack this ability. Guardianship should only be used when all other options have been exhausted. Lifecare Guardianship, Inc. (LCG) is committed to educating individuals, professionals and the public on guardianship and alternatives to guardianship. LCG is available to medical professionals, attorneys, elder care specialists, individuals and their families for consultation on reviewing options, including guardianship.

 

Guardianship: What is it? When is it needed?

A guardian is one who is entrusted by law for the care of another person, his/her estate or both. The guardian becomes responsible for protecting and preserving the ward’s estate, rights, and overall well being. An individual who is 18 years or older is presumed competent until they are determined by a court of law to lack the capacity to manage their own financial and personal affairs.  Several disabling conditions can lead to a person being adjudicated a disabled person including:  

Mental deterioration

Physical incapacity

Mental illness

Developmental disability 

 

The disability must prevent the person from making and communicating responsible decisions about his/her personal affairs.


Who is Lifecare Guardianship?

LCG is a not-for-profit corporation that was created in 2002 to provide guardianship services for individuals with disabilities.  The company was born out of clients’ need for a comprehensive guardianship service when they do not have family or friends to assist with the management of their personal and/or financial affairs.  Since its’ inception, LCG has been court appointed to serve as guardian for clients in numerous counties throughout the Chicagoland area.  We have been called upon by countless professionals and the court system to become involved in difficult cases, including cases involving financial, emotional,or physical abuse or neglect of individuals with disabilities. We have served in a multitude of capacities, including Guardian of Person, Guardian of Estate, Limited Guardian, Temporary Guardian, and court appointed Lifecare Manager. 

Lifecare Guardianship, Inc. provides a comprehensive service which includes management of medical care, living arrangements, and finances; referral to service providers; assessment of care needs; assessment and application for entitlements; and advocacy.  LCG tailors each client’s care plan to meet their specific  needs, however, all clients are seen a minimum of once a month which is in accordance with the Standards of Practice established by the National Guardianship Association.   

Our philosophy

Lifecare Guardianship, Inc. lives by the company motto, “enriching lives through guidance, advocacy and care”.   In doing so we strive to ensure that decisions are compatible with the clients’ wishes as much as possible.  Additionally, clients are maintained in the least restrictive environment in order to maximize their independence and autonomy.  LCG has been instrumental in assisting many clients with restoring their rights by decreasing the powers of a guardianship or nullifying the guardianship entirely when their condition improves to the point where they are competent to manage their own affairs.

All case work is done in accordance with the court requirements and under the supervision of the presiding judge.  LCG maintains open communication with all involved parties to ensure that all aspects of clients’ needs are met, including their social, emotional, and medical well-being.  LCG is a member of the National Guardianship Association and follows their Model Code of Ethics and Standards of Practice for Guardians (http://www.guardianship.org/pdf/standards.pdf).   Standards[m1]  of Practice for Guardians :

Code of Ethics

Lifecare Guardianship follows the Model Code of Ethics for Guardians adopted by the National Guardianship Association. The guardian:

  • shall exercise extreme care and diligence when making decisions on behalf of a ward. All decisions shall be made in a manner which protects the civil rights and liberties of the ward and maximizes independence and self-reliance.
  • shall exhibit the highest degree of trust, loyalty, and fidelity in relation to the ward.
  • shall assume responsibility to provide informed consent on behalf of the ward for the provision of care, treatment, and services. The Guardian shall ensure that such care, treatment, and services represent the least restrictive form of intervention available.
  • guardian of the estate shall provide competent management of property and income of the estate. In the discharge of this duty, the guardian shall exercise intelligence, prudence, diligence, and avoid any self-interest.
  • has an affirmative obligation to see termination or limitation of the guardianship whenever indicated.

Lifecare Guardianship follows the Model Code of Ethics for Guardians adopted by the National Guardianship Association. The Guardian:

  • shall exercise extreme care and diligence when making decisions on behalf of a ward. All decisions shall be made in a manner which protects the civil rights and liberties of the ward ans maximizes independence and self-radiance.
  • shall exhibit the highest degree of trust, loyalty, and fidelity in relation to the ward.
  • shall assume legal custody of the ward and shall ensure the ward resides in the least restrictive environment available.
  • shall assume responsibility to provide informed consent on behal of the ward for the provision of care, treatment, and services. The Guardian shall ensure that such care, treatment, and services represent the least restrictive form of intervention available.
  • guardian of the estate shall provide competent management of property and income of the estate. In the discharge of this duty, the guardian shall exercise intelligence, prudence, diligence, and avoid any self-interest.
  • has a affirmative obligation to see termination or limitation of the guardianship whenever indicated.

Staff

The Lifecare Guardianship, Inc. staff is comprised of professionals with special interests and expertise in the needs of the elderly and those with disabilities.  The staff consists of masters prepared nurses, social workers and other clinical professionals with specialized education and interest in the following areas:

  • Geriatrics
  • Developmental disabilities
  • Psychiatric illnesses including geriatric psychiatric conditions
  • Rehabilitation/habilitation
  • Workers compensation
  • Personal injury cases
  • Clients with hoarding issues
  • Financial exploitation cases
  • Abuse and neglect cases
  • Hospice and end of life issues

Several have achieved National Certified Guardian status through the Center for Guardianship Certification

Are There Different Types of Guardians? 

Limited Guardianship: when the individual can make some, but not all, decisions regarding his/her person and/or estate. The powers of a limited guardian must be specifically listed in the court order. The court orders are tailored to address the specific limitations that the individual has so that they retain all of their rights except those areas in which they need assistance.  It may be a limited guardian of the estate, the person, or both.

Plenary Guardianship: when the individuals limitations necessitate a guardian who has the power to make all important decisions regarding the individuals personal care and/or finances.

Guardianship of the Person: when the individual’s disability causes them to lack the capacity to make or communicate appropriate decisions regarding his/her care and personal affairs.  This includes, but is not limited to, decisions regarding medical care, living arrangements, and educational and vocational issues.

Guardian of the Estate: when the individual’s disability causes them to lack the capacity to manage his/her estate and financial affairs.

Temporary Guardian: when there is an emergency situation that requires a substitute decision maker to protect the individual’s financial and personal well being.  Evidence supporting the emergent need must be presented.  A temporary guardianship lasts 60 days or may be terminated prior to this if a permanent guardian is appointed or the courts determine that the temporary guardianship is no longer needed.  Some situations that would necessitate a temporary guardianship include financial or physical abuse or neglect, need for emergency medical care, and inability for an individual to be relocated to a safe living environment. The appointment of a temporary guardian does not necessarily mean that a permanent guardian will be appointed.

Who Can be Guardian?

In order for one to serve as guardian they must be:

  • Over the age of 18
  • Capable of managing the duties of guardianship
  • Not convicted of a felony
  • Not a service provider of the ward
  • Not an employee of a service provider of a ward
  • Not a creditor of a ward

What are alternatives to family and friends when family is unwilling, unable, or unfit to serve:

-Office of State Guardian: State supported program that is available to individuals when their estate is valued at less than $25,000.  Fees for services are charged to the estate when there are available assets.

-Office of Public Guardian: County supported program that is available to individuals when their estate is valued at more than $25,000. Fees for services are charged to the estate.

-Not-for-Profit services such as Lifecare Guardianship Fees for services are charged to the estate.

-Private Individuals: Attorneys, Life Care Managers, or friends. Fees for services are charged to the estate.

What is the process for obtaining guardianship?
Obtaining guardianship can be a lengthy process.  If there is an emergency that requires the protection of a temporary guardianship, this can be completed within 24 to 48 hours.  The normal guardianship process can take anywhere from 14 days to two months and depends on many factors.  Some situations that can prolong the guardianship process are inability to obtain required information and documentation that is needed for the guardianship petition, disagreement among family members or other interested parties, and lack of approval by the individual (respondent) for whom guardianship is being pursued.  A respondent always has the right to contest a guardianship.

Before starting a court proceeding, one must obtain a written report documenting the person’s disability. These forms can be obtained from the Probate Clerk in the county where the guardianship is being filed. This document should be completed by a licensed physician or psychologist and request that they document their observations in several areas of the individuals condition and level of functioning including:

-A description of the nature of the respondent’s disability much be included as well as how it impacts on his/her welfare.

-An analysis and results of evaluations of mental and physical condition within three months of the date of filing the petition.

-An opinion as to whether guardianship is needed and reasons thereto.

-A recommendation as to the most suitable living arrangement and, when appropriate, treatment or habilitation plan.

Original signature of the person performing evaluation and qualifying credentials.

Once a physician’s report is obtained a petition must be filed with the probate courts.  The petition includes demographic information regarding the respondent, what their disability is and who the petitioner is nominating to serve as guardian.  There is generally a fee involved in filing this petition. 

After a petition is filed, a court date is scheduled that usually occurs within 30 days.  Before the court date the respondent must be served a summons through which they are given a copy of the petition for guardianship and told when the preliminary court date is.  All respondents are encouraged to attend their court dates if possible.  Notice must also be sent to any interested parties so they are aware of the pending proceedings and the court date. 

During the initial court date the courts may appoint a Guardian ad Litem (GAL).  This is an attorney or other trained professional who is responsible for investigating the respondent’s condition and need for guardianship.  The GAL will visit the respondent and discuss the guardianship proceedings and provide a copy of their rights.  Additionally the GAL will determine what the respondent’s position is regarding the guardianship which they will document in a written report along with their position regarding the appropriateness of a guardianship.

If the respondent and interested parties are not contesting the guardianship, there is clear evidence supporting the need, and the GAL believes it is in the individual’s best interest, the courts may approve the petition and enter an order appointing a guardian without further court proceedings.  A respondent always has the right to contest a guardianship and request a trial during which the respondent and the petitioner must provide evidence supporting their positions. 

 Attorney Representation and Other Protections: 

  • The advice of legal counsel may be beneficial.
  • A person facing guardianship has the right to a court appointed attorney.
  • An individual facing guardianship has the right to request an independent medical evaluation.

What is the Cost of Guardianship and Who Pays For It? 

  • The fees are charged to the estate of the alleged disabled person.
  • The fees include the court costs, court filing fees, attorney’s fees, Guardian ad Litem fees, Care or Case Management fees, as necessary.
  • Guardianships that are not contested can go very smoothly and the costs are minimized.
  • -Guardianships that are contested can be quite costly. Minimizing court time is key to managing costs.
  • The court requires an annual report for the estate and person.

Admission Criteria for Lifecare Guardianship

Valid physician’s report which includes: Nature of Disability, Extent of Disability, Rehabilitation/habilitation potential, Appropriate living arrangement, Clear statement of need for guardianship.

Notice Verification that all family members power of attorneys and other interested parties have been notified with names, addresses, and phone numbers provided- if unable to locate family members, describe efforts and results in attempts to notify.

Estate must have $25,000 or more in liquid assets that are verifiable.

Professional Lifecare Management assessment whenever possible to evaluate for recommendations and guardianship alternatives

Disclosure of any lawsuits, liens, indebtedness, or pending legal action.

Lifecare Guardianship, Inc. will have legal representation on all cases.