Guardian of a Disabled Person Can Be Removed for Refusing to Follow Recommended Services

The Illinois Appellate Court has affirmed the decision by a Cook County associate judge who ordered the removal of the guardian of a disabled person.

On Feb. 24, 2009, Patricia Herard was adjudicated by the court to be disabled. Herard was diagnosed with “profound mental retardation and legal blindness.”  It was also reported that she has epilepsy, behavior reminiscent of autism and functioning “in the age ranges of 9 months to just fewer than 3 years.” Patricia’s mother was appointed her legal guardian.

An agreement was signed and delivered to the court between Herard’s parents, her guardian ad litem and the Bank of America.  The agreement required Herard’s parents to grant reasonable access to Herard for a court-appointed case manager, in this case, Rehab Assist Guardianship Services.  The reasonable access was intended to include both announced and unannounced visits.

On July 23, 2009, the guardian ad litem filed a petition that requested that Herard’s mother be removed as guardian because she chose not to cooperate with Rehab Assist’s requirements.  When Herard’s parents agreed to see a behavior modification specialist and allowed Rehab Assist to monitor the case, the petition to remove them was withdrawn.

A year later, on July 23, 2010, the guardian ad litem filed a supplement to the petition to remove. In it he accused Herard’s parents of refusing to sign consents for assessments by Rehab Assist and failing to comply with the court’s orders. Herard’s mother refused to meet with Rehab Assist or the guardian ad litem to talk about the concerns that were raised.

The court then entered an order requiring Herard’s parents to comply with all the recommendations of the guardian ad litem and Rehab Assist.

On Nov. 2, 2011, Herard had a seizure. Herard was being prescribed an anticonvulsant to be given twice a day but apparently Herard’s mother did not administer the medication.  In the emergency room, only negligible amounts of the medication were found in Herard’s body. 

Two days later, the guardian ad litem filed an emergency petition to remove Herard’s parents as guardian. The court appointed Rehab Assist as the temporary guardian.  On Oct. 5, 2012, after a series of hearings, the court removed Herard’s mother as her guardian due to her failure to manage her daughter’s medication. 

The court also noted that Herard’s behavior had become more aggressive and that she was having more seizures. Herard’s mother was apparently in denial. Herard’s parents appealed the court’s decision that removed them as guardians. 

The Illinois Appellate Court examined the actions of Herard’s parents, looking carefully at the parents’ refusal to give the required medicine and the noncompliance with the judge’s orders. The parents’ actions may have worsened the behavior of Herard while in her mother’s care.

Herard’s mother argued that the order removing her as guardian “ignores the public policy of Illinois to keep families together.”  However, Herard’s mother chose not to cite precedent showing that an unfit relative should be retained as a guardian.  The appellate court specified that such consideration should “look at the record as a whole,” by which standard Herard’s parents would still be considered unfit regardless of their relationship as parents.

Herard’s parents also argued that there was insufficient notice in the petition regarding prior seizures, self-harm and Herard’s parents’ failure to communicate with the court and guardian as well as the condition in which Herard was kept, the specifics of which were not included in the original complaint.

The appellate court was not persuaded and affirmed the removal of Herard’s parents as being in the best interest of the disabled person.

Accordingly, the trial judge’s removal of Herard’s parents and their dismissal was affirmed.

In re Estate of Patricia Herard, 2013 IL App (1st) 130234-U (Dec. 17, 2013).

Kreisman Law Offices has been handling estate, trust and probate litigation for individuals and families for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Summit, Countryside, Western Springs, Oak Lawn, Evergreen Park, Chicago Ridge, Palos Heights, Country Club Hills, South Holland, Lansing, Chicago Heights, Olympia Fields and Richton Park, Ill.

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