Illinois

Guardianship Laws

Right to Counsel in Statute: Initial Guardianship Proceedings: 
Yes, Conditional
Right to Counsel in Statute: Post-Appointment Guardianship Proceedings: 
Yes, Conditional
Right to Counsel Statututory Citation: 
Right to Counsel Definition in Statute: 

The court (1) may appoint counsel for the respondent, if the court finds that the interest of the respondent will be best served by the appointment, and (2) shall appoint counsel upon respondent's request or if the respondent takes a position adverse to that of the guardian ad litem. The respondent shall be permitted to obtain the appointment of counsel either at the hearing or by any written or oral request communicated to the court prior to the hearing. The summons shall inform the respondent of this right to obtain appointed counsel. The court may allow counsel for the respondent reasonable compensation. See 755 Ill. Comp. Stat. 5/11a-10(b). "The respondent is entitled to be represented by counsel . . . " 755 Ill. Comp. Stat. 5/11a-11(a). When guardians seek consent for sterilization of the ward, the court applies the same standards for appointing counsel as in 10(b) above. See 755 Ill. Comp. Stat. 5/11a-17.1. When a ward or or another person seeks termination or modification of the guardianship, the "ward is entitled to be represented by counsel " and the court (1) may appoint counsel for the ward, if the court finds that the interests of the ward will be best served by the appoint and (2) shall appoint counsel upon the ward's request or if the respondent takes a position adverse to that of the guardian ad litem. See 755 Ill. Comp. Stat 5/11a-21.

Advocacy Role of Counsel Defined in Statute: 
Not stated
Professional Rules &/or Ethics Opinions: 

a) When client's capacity to make adequately considered decisions is diminished the lawyer, as far as reasonably possible, shall maintain a normal client-lawyer relationship with the client; b) when in risk of harm…seeking appointment of GAL or guardian as necessary. Ill. Rules of Prof. Responsibility, Rule 1.14(a) and (b). Comment 1 states that "a client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client's own well-being." Ethics opinions only available to members of IL Bar.

Other Case Law: 

A shared attorney-GAL role may exist if the ward's stated interests does not conflict with the ward's best interest. When adversarial positions arise, the ward's counsel has the duty to protect the ward's rights. In re Estate of Ohlman, 630 NE2d 1133 (Ill. App. 1994).

Discuss Guardianship or Supported Decision-Making?: 
Yes