Amendments to Section 11a of the Illinois Probate Act: A Roadmap for Guardianship Attorneys

Amendments to Section 11a of the Illinois Probate Act:

A Roadmap for Guardianship Attorneys

BY KATHRYN G. SHORES AND FREDRIC BRYAN LESSER

Recently, 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 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

1 755 ILCS 5/11a-5(b-5). 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.

together; note that co-guardians may not be appointed where one of the co-guardians is the Office of the State Guardian or the public guardian.

In light of these new rules, attorneys seeking the appointment of co-guardians should be sure to tailor their petition for appointment of a guardian to address the mandatory factors the court must now consider. For example, it would be wise to expressly allege facts reflecting the co-guardians’ history of working together and their agreement to serve as co-guardians. In some cases, this may require you to abandon the court-issued form petition, but a wise practitioner should always favor preparing the most appropriate and compelling pleading, even where it may differ from the court’s form.

The amended statute requires that the guardians agree to serve together and that they have a history of working well together, but even the most amicable of co-guardians may sometimes disagree. Notably absent from the amended statute is any guidance as to the authority of co-guardians to act independently of one another (e.g., must both co-guardians sign checks for the guardianship estate?), nor does the Act dictate how to proceed if the co-guardians do not agree. When faced with a disagreement, the co-guardians might consider filing a petition for instruction. Attorneys should carefully consider their role in this situation. If the same attorney represents both co-guardians, and the co-guardians cannot agree, the attorney may be forced to withdraw from representing one or both of the co-guardians. agree to work with one another. The exception, again, is where the Office of the State Guardian or the public guardian is appointed; either entity must agree to the appointment of a separate guardian in the other

With the amendment role. Section 11a-12(d), which addresses the order of Section 11a-5 of the of appointment, goes on to require that the court’s written order state Probate Act , the court’s the factual basis for its findings supporting the authority to appoint appointment of separate guardians. co-guardians is now clear. Again, while this practice is not entirely new to guardianship, the procedure is new to the statute. Accordingly, in drafting their petitions for guardianship and orders appointing a guardian, attorneys should be careful to include the required statutory “best interests” element in the petition and include the factual basis for the appointment of separate guardians in the proposed order.

III. REQUIRED NOTICES

The recent amendments to the Probate Act also included substantial changes to the statutory notices that must be provided to the respondent (prior to appointment of a guardian) and the person with a disability (after the appointment of a guardian). Appropriately, the changes seem aimed at protecting the rights of respondents and persons with a disability both before and after the appointment of a guardian. In light of the current national conversation regarding the appropriate use of guardianships and conservatorships, the Illinois General Assembly’s attention to protecting the rights of persons with a disability is timely.

II. APPOINTMENT OF SEPARATE GUARDIANS

Similar to the appointment of co-guardians, it has long been common practice to appoint separate persons as guardian of the person and guardian of the estate. Although this was arguably already permitted in subsection (b) of Section 11-5, the addition of new subsection (b-5)(1) and additional language in Section 11a-12(d) now makes this power crystal clear.2

Newly added Section 11a-5(b-5)(1) expressly permits the appointment of separate guardians of the person and the estate. As with the appointment of co-guardians, the court must find that appointing separate guardians is in the best interests of the person with a disability; however, unlike with co-guardians, the court need not find that these two guardians will cooperate or

A. SUMMONS AND LIMITED GUARDIANSHIP

The first revision to the notice requirement is the statutory summons, which contains the Notice of Rights of Respondent, defined in Section 11a-10(e).3 When a guardian ad litem has been appointed, the guardian must personally serve the respondent with this notice. The guardian ad litem must also advise the respondent orally and in writing of the contents of the petition and the rights outlined in subsection (e).

While the substance of the notice of rights is not much changed, a newly-added paragraph (8) advises: “You have the right to ask a judge to find that although you lack some capacity to make your own decisions, you can make other decisions, and therefore it is best for the court to appoint only a limited guardian for you.”4 This

2 755 ILCS 5/11a(b-5); 755 ILCS 5/11a-12(d).

3 Previously defined by Section 11a-11. 4 755 ILCS 5/11a-10(e).

addition is the first time a guardian ad litem has been required to advise a respondent that appointment of a limited guardian may be possible.

Any attorney practicing in the field of guardianship should not only be aware of limited guardianships5 but should be a champion of their use where appropriate. The Probate Act favors the use of limited guardianships, a concept that effectively balances the freedom of the person with a disability with their need for assistance. In reality, limited guardianships may be underutilized. This may stem from the difficulty of crafting an order that defines the authority of the limited guardian, but attorneys should not shy away from the task of doing so where it means the liberty of a person will be better protected. Guardians ad litem should not only advise the alleged person with a disability of their right to request a limited guardianship but, where suitable, should discuss the parameters of a limited guardianship with the respondent and make appropriate recommendations to the court when limited guardianship is warranted.

B. NOTICE OF RIGHT TO SEEK MODIFICATION

Newly amended Section 11a makes additions to the statutory Notice of Right to Seek Modification that must be provided to the person with a disability in writing at the time of the appointment of a guardian, either directly or by mail.6 The amended statute now requires that the name of the guardian be included in the notice, which previously was not a requirement. Additionally, the language of the notice is now more informal than the previous version.

In addition, a notice of rights must be included, similar to those that were read to the respondent by the guardian ad litem and recited in the summons served upon the respondent. This additional paragraph must state:

The court may appoint a Guardian ad litem to investigate and report to the court. You have the right to have a lawyer appointed for you, to have a hearing before the court, to have a jury of six persons decide the facts, to present evidence and tell your story, and to ask witnesses any questions in cross-examination.7

These rights too have been colloquialized for the benefit of the person with a disability. It is difficult to read these required rights and not consider the allegation made by pop star Britney Spears, who said she had no idea until recently that she was entitled to be heard by the court. Courts in Illinois and throughout the nation, along with attorneys as officers of those courts, must do their best to ensure that every person with a disability coming before

5 See 755 ILCS 5/11a-3(b) and 755 ILCS 5/11a-12(b). 6 755 ILCS 5/11a-19. 7 Id. them for guardianship is aware of, and understands, their rights to the best of their ability.

A final note on notices: the speed with which local forms committees learn about and update county court forms will inevitably vary. Attorneys would be wise to check the amended statute for the required language before relying solely on a court-issued form.

IV. GUARDIAN FEES

Next, the amended statute addresses the topic of guardian fees. It has generally been understood that the fees of a guardian are governed by Section 27-1, as are the fees of an executor or administrator.8 Now, however, the fees of a guardian are addressed separately from the fees of a representative in a decedent’s estate. These new directives can be found in two places in the Probate Act: Section 11a-13.5 and Section 27-1.9

Section 13.5 is an entirely new section of the Probate Act. It permits the guardian to collect “reasonable and appropriate” compensation for his services as guardian. The guardian’s fees under this section must be reviewed and approved by the court pursuant to a fee petition. The court must consider the following statutory factors when reviewing a guardian’s fee petition:

(1) the powers and duties assigned to the guardian by the court; (2) the necessity of any services provided; (3) the time required, the degree of difficulty, and the experience needed to complete the task; (4) the needs of the ward and the costs of alternatives; and (5) other facts and circumstances material to the best interests of the ward or his or her estate.

While it is the first time these factors have been defined by statute, they are not unlike the common law factors courts have been using to determine the reasonableness of fees for many years.10 In Lake County, court approval of the guardian’s and the guardian’s attorney’s fees have been required by Local Rule 5-3.20. Thus, while it is notable that the fees of the guardian are now statutorily regulated, it should not change much in the way that guardians record and collect their fees in practice. Guardianship attorneys will want to update their fee petitions to include this statutory language. And, of course, as always, guardians should be sure to keep detailed, contemporaneous records of their time in support of a future fee petition. Lastly, one substantive addition worth noting is found at the end of Section 11a-13.5, which classifies the fees of the guardian as a first class claim against the estate of a ward or deceased ward.

8 755 ILCS 5/27-1. 9 755 ILCS 5/11a-13.5 and 755 ILCS 5/27-1. 10 See, e.g., In re Estate of Halas, 159 Ill.App.3d 818, 832 (1st

Dist. 1987).