Amendments to Section 11a of the Illinois Probate Act:
A Roadmap for Guardianship Attorneys
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BY KATHRYN G. SHORES AND FREDRIC BRYAN LESSER
ecently, without fanfare or preamble, the General Assembly amended that portion of the Illinois Probate Act which addresses guardianships of persons with a disability. The changes, effective January 1, 2022, are important to the procedure and substance of guardianship appointments, and so attorneys who practice in the field should become familiar with the rules. This article will review the most substantive of the changes, as well as make recommendations for practitioners in the field of guardianship. I. APPOINTMENT OF CO-GUARDIANS Although Illinois courts have regularly appointed two (or more) persons to act as co-guardians for a person with a disability, the Probate Act had never explicitly provided for this possibility. In fact, the Illinois Power of Attorney Act expressly prohibits the nomination of co-agents when using the statutory short form powers of attorney; the Probate Act’s new, express permission for a guardianship court to appoint co-guardians is a diversion from the 1
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755 ILCS 5/11a-5(b-5).
The Docket
Kathryn G. Shores is a partner with Lesser Lutrey Pasquesi & Howe LLP, where she focuses her practice on guardianship administration and litigation, as well as all other aspects of estate planning, administration, and litigation. Fredric Bryan (“Rick”) Lesser is the lead name partner in the largest Estate Planning law firm in Lake County. He and his law firm regularly represent guardians as well as alleged disabled people.
related Power of Attorney Act. With the amendment of Section 11a-5 of the Probate Act1, the court’s authority to appoint co-guardians is now clear. The new Section 11a-5(b-5) (2) allows the court to appoint co-guardians to act as “guardian of the person, guardian of the estate, or both the guardian of the person and guardian of the estate,” however, to do so, the court must first make a finding that the appointment of co-guardians is in the best interests of the person with a disability. The Section now specifically requires the court to consider the proposed co-guardians’ history of cooperating and working together on behalf of the person with a disability. The court may appoint co-guardians only after the co-guardians have expressly agreed to serve
