IBA Compliance Connection

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An individual presented our bank with a court order appointing her as the Limited Guardian of the Estate of her mother, so we opened a guardianship account on behalf of the mother. The court order permits the mother to withdraw $35 dollars a month from the account, and to petition the court to increase that amount as necessary. However, the order does not identify any specific rights or duties of the guardian (the daughter), such as making deposits or withdrawals or obtaining account information. We have been permitting the guardian to make deposits and obtain account information on behalf of the mother. Are we also required to allow the guardian to write checks and set up automatic bill payments, which the guardian has requested, despite the lack of any directive in the court order? We called the Illinois Office of the Guardian, and someone there said it is typical for a court order establishing a limited guardianship to be sparse or vague. She said it would be up to our bank to decide whether to let the guardian write and cash checks and pay bills from the account, and we don’t want to take a risk if this isn’t in the order.

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In light of these facts, while your bank is not required to permit the guardian to write checks and set up automatic bill payments on the guardianship account, you may wish to make a business decision to do so on a temporary basis (particularly if the amounts involved would be nominal), which would provide the guardian with some time to obtain clarification in the court order. 

The Illinois Probate Act (Act) permits a court to appoint a limited guardian when a person lacks some but not all legal capacity. In making such an appointment, the Act requires the court to “enter a written order . . . specifying the duties and powers of the guardian.” But the rights and duties of a limited guardian of the estate are restricted “to the extent specified in the order establishing the guardianship.”

The Illinois Guardianship & Advocacy Commission has acknowledged that limited guardianships are particularly complicated, because the ward is not totally legally incompetent and the court must carefully determine which rights to take away. Thus, a limited guardianship “must be understandable to the guardian, ward and third parties who may rely on the order.”

For resources related to our guidance, please see:

  • Illinois Probate Act, 755 ILCS 5/11a-12(b) (“If the respondent is adjudged to be a person with a disability and to lack some but not all of the capacity as specified in Section 11a-3, and if the court finds that guardianship is necessary for the protection of the person with a disability, his or her estate, or both, the court shall appoint a limited guardian for the respondent's person or estate or both. The court shall enter a written order stating the factual basis for its findings and specifying the duties and powers of the guardian and the legal disabilities to which the respondent is subject.”)
  • Illinois Probate Act, 755 ILCS 5/11a-18 (“To the extent specified in the order establishing the guardianship, the guardian of the estate shall have the care, management and investment of the estate, shall manage the estate frugally and shall apply the income and principal of the estate so far as necessary for the comfort and suitable support and education of the ward. . . . The guardian may make disbursement of his ward's funds and estate directly to the ward or other distributee or in such other manner and in such amounts as the court directs.”)
  • Illinois Guardianship & Advocacy Commission, Practitioners Guide to Adult Guardianship in Illinois (Limited guardianship) (“Perhaps the least understood and least used form of guardianship applies where a person lacks some, but not all of the capacity to make personal decisions or handle an estate. . . . One reason for the bias toward plenary guardianship is that the creation of an appropriate limited guardianship is complicated when compared to plenary guardianship. . . .The limited guardianship must be understandable to the guardian, ward and third parties who may rely on the order. Not all guardianship practitioners, medical practitioners and courts are able to design an appropriate, useful limited guardianship order.”)