Qualified appointment of GAL

Although no right to counsel for adults alleged in need of protection could be located, it appears that the Department on Aging cannot provide protective services without the adult’s consent.  According to 320 ILCS 20/9(a), services shall be arranged for an eligible adult if they consent, but “[i]f an adult withdraws his or her consent for an assessment of the reported incident or withdraws his or her consent for services and refuses to accept such services, the services shall not be provided.” 

If the Department pursues remedies through on the adult’s behalf through either the Probate or Domestic Violence Acts, it is possible that the individual may receive appointed counsel.  For example, if the adult does not have the capacity to consent, their power of attorney agent or guardian may consent on their behalf. Id. at (c).  But where the adult’s agent or guardian is the suspected abuser, refuses to consent, or withdraws consent, the Department may “request removal of the guardian and appointment of a successor guardian or request removal of the agent and appointment of a guardian.” Id.

Alternatively, if it appears that the adult is incapable of consenting, the Department may seek temporary guardianship of the adult in order to consent on the adult’s behalf or an ex parte order for the provision of services or for an assessment. Id. at (b)-(c). An action for ex parte authorization orders may be sought “in conjunction with other civil proceedings,” for example, “by filing a petition for an ex parte authorization order under the same case number as a guardianship proceeding under the Probate Act of 1975 where the eligible adult is the alleged adult with a disability.”  The right to counsel may attach in the related guardianship matters. See Legislation, Guardianship/Conservatorship of Adults – Protected Person.

As soon as is practicable after entry of an ex parte order, the court shall appoint a guardian ad litem for the eligible adult for the purpose of reviewing the reasonableness of the order. 320 Ill. Comp. Stat. 20/9(f).  However, the Adult Protective Services Act does not provide a definition for “guardian ad litem”, so it is not clear whether the GAL must be an attorney. See 320 Ill. Comp. Stat. 20/2.  Furthermore, the GAL seems to serve in a best interests and not client-directed capacity.

Finally, in the event of an emergency, the Department may even seek a protective order on the adult’s behalf.  The Domestic Violence Act may provide counsel in such a situation. See 750 Ill. Comp. Stat. Ann. 60/213.3 (“If a protection order petitioner is a “high-risk adult with disabilities for whom a guardian has been appointed,” then the court must appoint independent counsel.”).