Matthew R. Davison, Monahan Law Group, LLC, Chicago
312-419-0252 | Email Matthew R. Davison
Claims Against the Guardianship Estate
A claim against the estate of an adult with a disability is filed in the same manner as that filed against the estate of a decedent. The statutory provisions relating to claims against an estate are found at 755 ILCS 5/18-1 through 5/18-15.
A claim against the estate of an adult with a disability may be filed with the guardian or the court or both. 755 ILCS 5/18-1(a). If a claim is filed with the guardian but not with the court, the guardian may file the claim with the court but has no duty to do so. Id. Within ten days after a claimant has filed the claim with the court, the claimant (1) shall cause a copy of the claim to be mailed or delivered to each representative to whom letters of office have been issued (including the guardian of the person of an adult with a disability) and to the guardian’s attorney of record, unless the guardian or the attorney has consented in writing to the allowance of the claim or has waived mailing or delivery of a copy, and (2) must file with the court proof of mailing or delivery. 755 ILCS 5/18-1(b). “Failure to mail or deliver copies of the claim or to file proof thereof does not affect the validity of the claim.” Id. Each claim filed with the court must be in writing and state sufficient information to notify the guardian of the nature of the claim. 755 ILCS 5/18-2.
A claim may be based on a contract, a tort, or statutory custody. 755 ILCS 5/18-1(a). A statutory custodial claim is a claim of “any spouse, parent, brother, sister, or child of a person with a disability who dedicates himself or herself to the care of the person with a disability by living with and personally caring for the person with a disability for at least 3 years.” 755 ILCS 5/18-1.1. The claim must take into consideration the claimant’s lost employment opportunities, lost lifestyle opportunities, and emotional distress experienced as a result of personally caring for the adult with a disability, and it is in addition to any other claim, including a reasonable claim for nursing and other care. Id. The amount of the claim is based on the nature and extent of the adult’s disability:
1. for 100-percent disability, $180,000;
2. for 75-percent disability, $135,000;
3. for 50-percent disability, $90,000; and
4. for 25-percent disability, $45,000. Id.
Practitioners should be mindful that some circuit courts reject or otherwise take issue with the statutory percent-based claims.
Allowance and Disallowance of Claims by the Guardian
A guardian may pay or consent at any time in writing to all or any part of any claim if the same has not been disallowed by the court and the guardian determines the claim to be valid. 755 ILCS 5/18-11(a). Payment or consent by the guardian constitutes allowance of the claim and binds the estate. If a claim has been filed with the court and has been allowed by the guardian, the guardian must then promptly file notice of the allowance with the court. Failure to do so, however, will not affect the allowance. Note that any interested person may request that the guardian establish the propriety of the allowance of any claim. Id.
The guardian may disallow at any time all or any part of any claim that has not been filed with the court by mailing or delivering a notice of disallowance to the claimant and to the claimant’s attorney if known. 755 ILCS 5/18-11(b). The notice must state that if a claim is not filed with the court on or before the date stated in the notice (i.e., not less than two months from the date of the notice), the claim will be barred. Id.
Claim of the Guardian or the Guardian’s Attorney
If a guardian or the guardian’s attorney has a claim against the estate of an adult with a disability, this person must file a claim, and the court may appoint a special administrator to appear and defend for the estate. 755 ILCS 5/18-8. Notice of the claim of a guardian or the guardian’s attorney must be given by mail or in person to the ward and to all other representatives of the ward’s person or estate within ten days of filing. Id.
Jury Trial
Any interested person may demand a jury trial to try the issues of whether a claim should be allowed. 755 ILCS 5/18-6. A claimant or counterclaimant must file the jury demand at the time of filing the claim or counterclaim. 755 ILCS 5/18-6(a). A person opposing a claim or counterclaim must file the jury demand not later than the filing of that person’s answer or any other pleading. 755 ILCS 5/18-6(b). If a claimant or counterclaimant initially files a jury demand and then waives a jury, the person opposing the claim or counterclaim will be granted a jury trial upon demand if made promptly. 755 ILCS 5/18-6(c). In any event, for good cause shown, the court may permit a jury demand after expiration of the time specified. Id.
Hearing of Claims
Once a claim has been brought before the court, it may be allowed, set for trial, continued, or dismissed. 755 ILCS 5/18-7(a). If a guardian consents to a claim that has not been pleaded, the court may accept the guardian’s consent or may require the claimant to prove his or her claim. Id. In the event the estate has filed a counterclaim against a claimant and the court finds that the claimant is indebted to the estate, the court may enter judgment for the amount of the indebtedness. 755 ILCS 5/18-7(b).