It is not very often that our practice of law becomes national headlines, but in recent months, the concept of “conservatorship” or guardianship (as it is called in Illinois and will be referred to in this blog post), has become a hot topic of conversation because of Britney Spears’s legal battle to regain her rights.
Britney Spears has been under legal guardianship for over a decade after suffering from mental health issues in the early 2000s. However, in recent years, a “#FreeBritney” movement began to protest Britney’s guardianship as well as Britney’s father acting as her guardian. There has been a lot of information circulating in the media regarding Britney’s rights and what role her guardian has in making decision on her behalf. While we are not opining on Britney’s guardianship, in this blog post, we will explore the role of a guardian and how the process of terminating a guardianship works in Illinois.
We previously explained the basics of a Guardianship, but for some quick background, a Guardianship is a legal proceeding through which a court appoints a guardian (a person, a non-profit agency or a financial institution) to make decisions for a person who does not have the mental capacity to make their own financial or health care decisions. In Illinois, you can have a guardianship of the person, guardianship of the estate or guardianship of both the person and estate.
Guardianship of the Person
The Guardian of the Person is responsible for making healthcare decisions on behalf of the person under guardianship or the “Ward”. This individual is responsible for ensuring that the Ward’s healthcare needs are met and will make decisions on behalf of the Ward, conforming as close as possible to what is believed to be what the Ward would have decided, if they were making their own decisions. Among other decisions, The Guardian of the Person can make decisions to place the Ward in a facility such as a nursing home, if necessary. Every year, the Guardian of the Person files with the court an Annual Report providing the court with a status of the Ward’s health care, placement and their well-being.
Guardianship of the Estate
The Guardian of the Estate is responsible for the care and management of the Ward’s assets. The first step as Guardian of the Estate is to investigate the assets in the Estate to put together an Inventory for the court. This will allow the court to understand the value of the guardianship estate so that a yearly budget can be established for the use of the Ward’s funds. The Guardian of the Estate will transfer all the Ward’s liquid funds into a Guardianship Bank Account so that they can easily track the funds that go in and out of the Estate. Investments or real estate are sometimes liquidated, subject to court approval.
The Guardian of the Estate has authority to sign contracts on behalf of the Ward. For example, if the Ward owns any real estate that needs to be sold, the Guardian of the Estate, with the court’s permission, can enter into a contract for the sale of the property and sign as the Guardian of the Estate. Similar to the Guardian of the Person, the Guardian of the Estate can also make decisions relating to the Ward’s placement into a facility and can sign nursing home contracts, with the permission of the court, on behalf of the Ward.
Every year, the Guardian of the Estate is required to submit an Accounting to the court that shows money in and out of the estate. For that reason, as Guardian of the Estate, it is crucial to maintain good records of all transactions performed.
How to Terminate a Guardianship
On July 6, 2021, Britney testified in court that she did not know that she could petition for the guardianship to end. In Illinois, and in California where Britney resides, there are certain procedures the court requires to terminate a guardianship. It should also be noted that the majority of guardianships are granted when someone is at the end of life and experiencing dementia or other illnesses, which impair their ability to handle their own affairs. Therefore, termination of a guardianship is done rarely.
In Illinois, to terminate a guardianship, the guardian, the ward or any other “interested party” may file a petition for termination of a guardianship. The court will generally appoint a Guardian ad Litem to investigate the situation and submit a report to the court with their recommendation. The attorneys at the Law Office of Kate Curler LLC often act as Guardian ad Litem in Cook County and are experienced in this role.
A hearing will then be held where the parties will have the opportunity to present evidence as to why, or why not, the guardianship should continue. A medical report is not always required but can help the judge determine whether the ward continues to need a guardian. While the #FreeBritney movement has brought many of the issues with Britney’s guardianship to light, the fact is that the judge is not going to terminate the guardianship without specific procedures being followed.
As a final point, it is important to keep in mind that many of the court documents in Britney’s guardianship case are confidential so there is a lot of information that we, the public, are not privy to. In any event, guardianship should not be viewed as a method to strip the Ward of their rights and control their every movement. In fact, the Illinois statute states the goal of guardianship is to “encourage development of [the Ward’s] maximum self-reliance and independence.”
Guardianship is an important tool to help people who can no longer make decisions for themselves by taking care of their finances and health. We can only hope that the judge in Britney’s case has her reasons for maintaining the guardianship.
This information is meant to provide a very brief overview of the roles of the Guardian of the Estate and Guardian of the Person. However, every guardianship case is different and will involve nuances that are not included here. If you are considering guardianship for a family member or loved one, it is important to work with an experienced guardianship attorney who can help you every step of the way. The attorneys at The Law Office of Kate Curler have extensive experience in every aspect of the Guardianship process.
If you have questions about guardianship, please contact our office at lkaplan@curlerlaw.com or (312) 952-1077 for a free consultation.