Three customers own a savings and checking account in joint tenancy with right of survivorship. One of the customers had a guardian appointed for their estate and person. The guardian’s letters of office provide for a plenary guardianship of the estate and person of our customer (the ward), with authority for the care, management, and investment of the ward’s estate, under the court’s direction. The order appointing the guardian states that their duties include those set forth in 755 ILCS 5/11a-18, as well as payment of expenses for the care and comfort of the ward and payment of the guardian’s legal fees and expenses. Does this entitle the guardian to have the same access to the joint account as the ward would have if not adjudicated disabled?

We believe that the guardian must first petition the court before withdrawing any of the joint account funds to determine whether they are necessary for the support and maintenance of your customer.

Under the Illinois Probate Act, a court-appointed guardian has “the care, management and investment of the estate,” but only “to the extent specified in the order establishing the guardianship.” In this case, the order provides the guardian with the powers to pay their own legal fees and expenses and expenses for the care and comfort of the ward, as well as the duties outlined in 755 ILCS 5/11a-18, which include the duties to care, manage, and invest for the estate and apply income as necessary for the comfort and support of the ward.

Illinois courts have concluded that a ward’s estate includes personal property such as bank accounts. However, as to a guardian’s authority to control jointly-held property, there are some conflicting decisions among Illinois courts. For example, in an unpublished opinion in a 2013 case, a court held that a bank could not be held responsible for allowing a guardian to step into his ward’s shoes and remove the contents of a safe deposit box leased jointly by the ward and another individual. However, several earlier Illinois cases have held that guardians must petition the court to determine whether joint funds are needed to support and maintain the ward before withdrawing the jointly-held funds. It should be noted that those earlier Illinois cases were decided before Illinois law provided for guardianships and reference an earlier version of the Probate Act providing for conservatorships of adults with disabilities.

Given the conflicting court decisions in Illinois, we recommend that your bank ask the guardian to present a court order with a determination that the joint funds must be released to support and maintain the ward.

For resources related to our guidance, please see:

Illinois Probate Act, 755 ILCS 5/11a-18(a) (“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, his minor and adult dependent children, and persons related by blood or marriage who are dependent upon or entitled to support from him, or for any other purpose which the court deems to be for the best interests 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.”)

Department of Mental Health & Developmental Disabilities v. First Nat’l Bank, 104 Ill. App.3d 461, 464 (1st Dist. 1982) (The term ‘estate’ has a very broad meaning, encompassing ‘property of all kind, real as well as personal.’”)

Malone v. MB Fin. Bank, N.A., 2013 IL App (1st) 130443-U, *11 (Ill. App. Ct. 2013) (“In our opinion, Malone’s complaint and appeal are based on the incorrect premise that the bank should not have allowed the plenary guardian to access the safe deposit box that Mr. Johnson jointly held with another tenant. As Mr. Johnson’s plenary guardian, Mrs. Johnson stepped into her husband’s shoes and could act in his stead, and thus, whatever Mr. Johnson was entitled to do, Mrs. Johnson could do as his legal representative. The safe deposit box lease at issue granted each of the joint tenants the right to enter and remove the entire contents of the box, and the court’s appointment of a guardian to represent one of joint tenants did not diminish the terms of the lease.”)

Rozycke v. Sroka, 3 Ill. App.3d 741, 744–45 (5th Dist. 1972) (“The conservator . . . [argues] that she has the right to withdraw the proceeds of the [joint] deposit for the use and benefit of the ward, citing Manta v. Kahl, 348 Ill.App. 373, 108 N.E.2d 781. However, in a later case, In Re Estate of Hirsh, 27 Ill.App.2d 228, 169 N.E.2d 591, it was held that a conservator should not determine the rights of joint depositors themselves, but should submit the matter to the court who would decide whether the joint funds were necessary for the support and maintenance of the incompetent. This rule is conceded by the conservator. We agree with the Hirsh case . . . .”)

Illinois Probate Act, 755 ILCS 5/11a-18(a-5) (“The probate court, upon petition of a guardian . . . and after notice to all other persons interested as the court directs, may authorize the guardian to exercise any or all powers over the estate and business affairs of the ward that the ward could exercise if present and not under disability. The court may authorize the taking of an action or the application of funds not required for the ward’s current and future maintenance and support in any manner approved by the court as being in keeping with the ward’s wishes so far as they can be ascertained . . . Actions or applications of funds may include, but shall not be limited to, the following: . . . (2) conveying, releasing, or disclaiming his or her contingent and expectant interests in property, including marital property rights and any right of survivorship incident to joint tenancy or tenancy by the entirety.”)