Guardian ad litem is a term you have likely heard, but may not understand what it means or their role. When adults with special needs turn 18, they legally become adults. As a result, their parents’ legal rights to make decisions for their child ends, as the law presumes that adults can handle and make decisions about their affairs. However, some adult children with special needs may still need their parents’ assistance and legal decision-making powers to function successfully. As a result, you can consider different options to retain partial or full decision-making power for your adult children with special needs, depending on their mental capacity.

Powers of Attorney v. Guardianships

Powers of attorney and guardianships are both ways that you can exercise varying degrees of control and decision-making power over an adult child with disabilities. Both forms of legal authority allow you to communicate with various entities, such as medical and other service providers, handle financial affairs, and make medical decisions for your children with disabilities. The appropriate type of authority depends on the adult’s needs and abilities, which can vary greatly according to their level of functioning.

Powers of Attorney

One of the least restrictive steps parents can take is to have their adult children with disabilities sign various powers of attorney. Having your child sign these documents may be appropriate if they are willing to allow you this authority and understand that they are giving you this authority by signing the documents.

Having power of attorney allows parents to talk to and make decisions on behalf of their child with different entities, such as the school, the Social Security Administration, the Illinois Department of Human Services, employers, and any other organization that provides services to the individual. Many entities, such as the Social Security Administration and the Illinois Department of Human Services, require the child to sign their agency’s own power of attorney form to allow parents to access any information or act on their behalf.

An adult child also can sign an Illinois Statutory Power of Attorney for Property to allow parents to handle financial affairs. Although a statutory form is available, you likely will want to ensure that your power of attorney contains selected other provisions that allow you to speak with specific entities on your child’s behalf, such as the Internal Revenue Service and various residential and employment service providers.

Your child also can sign an Illinois Statutory Power of Attorney for Health Care, which will allow you to make decisions about your child’s medical care. Having this document in place relieves you from relying on the Illinois Healthcare Surrogate Act, which only grants such authority if a doctor determines that a patient is not competent to make medical decisions. Children can also give their parents legal authority to make decisions about their mental health treatment.

Guardianships

While powers of attorney are sufficient in some cases, they only work as long as your adult child is willing to permit you access and allow you to be involved in all necessary communications and decisions. Powers of attorney do not eliminate adult children’s right to make decisions for themselves, so they can still act independently of their parents. If a greater degree of control is necessary, or if an adult child does not understand the effects of a power of attorney, guardianship may be the appropriate step.

Guardianships can be limited guardianships or plenary (full) guardianships. A limited guardianship limits the parent’s legal authority to only a few areas, such as medical and financial decisions. Limited guardianships often are appropriate for adults with disabilities who are more independent but still require some level of assistance. Parents also may choose this type of guardianship to allow their child to continue driving, as a plenary guardianship prevents a person from holding a driver’s license under Illinois law.  In addition, some parents may choose a limited guardianship to limit the risk of liability for the child’s actions.

A plenary guardianship is the most restrictive and protective action parents can take concerning their adult children with special needs. As guardians of their child, the parents can generally act on their child’s behalf just as they did when the child was a minor. Adults with special needs cannot make decisions independently and retain no legal right to do so, unlike under a power of attorney, other than the right to vote. Some parents wish to avoid plenary guardianships due to the risk of being liable if the child injures someone or damages another’s property while under their supervision. However, parents should remember that when the child is at school, a day program, or a residential facility, the risk of liability generally shifts to that entity and away from them.

What is a Guardian Ad Litem?

Section 11a-10(a) of the Illinois Probate Act authorizes and outlines the procedures for courts to appoint guardian ad litem (GALs) in adult guardianship cases. A GAL is a person that a court appoints in an adult guardianship case to represent the adult’s best interest. In most cases, a GAL is a licensed attorney. The persons seeking guardianship are responsible for the costs of the GAL if the court appoints one in the guardianship case.

Is a Guardian Ad Litem Always Necessary?

The Probate Act requires a court to appoint a GAL for the adult who is the subject of the guardianship unless the court determines that a GAL is not necessary to protect the adult or give recommendations to the court. During the guardianship proceedings, the judge will have the opportunity to meet the adult with disabilities and the parents who petition the court to become the adult’s guardians. As a result, judges in most counties rarely appoint a GAL if a guardianship case is not contested and the parties agree that parents should have guardianship over an adult with disabilities.

What Does a Guardian Ad Litem Do?

GALs complete several tasks as part of their duties, including the following:

• Meeting with the adult with disabilities and informing them of the petition and their rights;
• Determining how the adult feels about the petition and the proposed guardianship;
• Reviewing any medical and mental health records for the adult that the GAL deems necessary;
• Interviewing the proposed guardians to determine their suitability; and
• Consulting with other professionals regarding the adult’s disabilities, if necessary.

Once the GAL has completed the above tasks and taken any other necessary actions, the GAL submits a written report to the court detailing all findings. The report also contains the GAL’s recommendations as to the proposed guardianship.

Call Rubin Law Today to See How We Can Help

Rubin Law is the only Illinois law firm exclusively dedicated to providing compassionate legal services for children and adults with special needs. In addition, we offer unique legal and future planning techniques to meet your family’s individual needs. At our law firm, you can discuss all your needs and objectives with an experienced Illinois special needs trust lawyer.

Call us today at 866-TO-RUBIN or contact us online to learn more about the services we can offer you and your family.