An elderly couple has a joint account at our bank, and their daughter has been appointed as their guardian. We have received two court orders establishing the daughter as the plenary guardian of her mother’s estate and of her father’s estate. However, our account onboarding platform is sending an alert that a guardian can be added only to an individually owned account. Is it permissible to add a guardian to a joint account if they have been appointed as guardian for both account owners?

Yes, we believe it is permissible to add a guardian to a joint account where the guardian has been appointed for both owners of the joint account. We also are not aware of any prohibitions on adding a guardian to a joint account who has been appointed for only one joint owner — but such situations (where only one joint owner has a guardian) may be more fraught with potential conflicts as discussed below.

Under the Illinois Probate Act, a court-appointed guardian of the estate has “the care, management and investment of the estate” (including bank accounts), but only “to the extent specified in the order establishing the guardianship.” The guardian is charged with managing the estate “frugally” and applying “the income and principal of the estate so far as necessary for the comfort and suitable support . . . of the ward.” A guardian of the estate also may petition the court to take certain actions beyond what is needed for the current and future maintenance and support of the ward.

We are aware of conflicting decisions among Illinois courts regarding a guardian’s authority to control jointly-held property. For example, in an unpublished opinion in a 2013 case, a court found that a bank could not be held responsible for allowing a plenary guardian of a ward’s estate and person to remove the contents of a safe deposit box leased jointly by the ward and another individual. Although several earlier cases held that guardians must petition the court to determine whether joint funds are needed to support and maintain the ward before they can be withdrawn, the decision in the 2013 case was based on a 1952 case in which the court found that a conservator succeeded to the identical rights of the ward under a joint deposit agreement and therefore had the right to withdraw any or all of the funds.

In this situation, the same guardian has been appointed for both joint owners and has a duty to use the account proceeds for each of their support. Consequently, we believe the potential for one joint owner (or their representative) to seek to hold your bank liable for allowing the guardian to withdraw joint account funds is greatly diminished. Your bank also would not necessarily know who the guardian is withdrawing funds for — unlike a situation where a guardian has been appointed for only one joint owner.

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.”)

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.”)

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. . . .”)

Manta v. Kahl, 348 Ill.App.373, 377 (1st Dist. 1952) (“To entitle plaintiff to recover, it must appear from the complaint that at the time of the payment of the amount to Margaret MacKay, the bank then owed a definite duty to plaintiff, and that it breached that duty. Nowhere does it appear from the complaint that plaintiff, prior to the appointment of Costigan as conservator, had exercised or tried to exercise his right of withdrawal under said joint deposit agreement. The relationship of the parties and the bank was a contractual one, and the parties were bound by the terms of that contract. When Costigan was appointed conservator, he had the legal right as conservator to withdraw the amount of said deposit. As conservator he succeeded to the identical rights of Margaret MacKay under the said deposit agreement.”)

Malone v. MB Fin. Bank, N.A., 2013 IL App (1st) 130443-U, ¶ 12 (“Under Illinois law, when the attorney was appointed conservator, he “succeeded to the identical rights of [the woman] under the deposit agreement [with the bank].” Manta, 348 Ill. App. at 377, 108 N.E.2d at 783. Also, ‘The relationship of the parties and the bank was a contractual one, and the parties were bound by the terms of that contract.’ Manta, 348 Ill. App. at 377, 108 N.E.2d at 783. Therefore, the conservator had the right to access the joint account and withdraw any or all of the funds. Manta, 348 Ill. App. at 377, 108 N.E.2d at 783. Accordingly, the appellate court held that the trial judge ‘was justified in dismissing the [joint account holder's] complaint.’ Manta, 348 Ill. App. at 373, 108 N.E.2d at 783.”)