Guardianship is different from custody – it is a legal relationship where one person makes decisions for another person, usually a child or a disabled person, including disabled adults. In Illinois, there are many different types of guardians designed to perform different functions on behalf of the child or disabled person.
Here, we explain what guardianship is and the process to become a guardian, among other important information.
Two Types of Guardianship in Illinois
A guardian in Illinois can take on two different types of responsibilities:
- Person guardianship refers to a guardian of a person, meaning the guardian is responsible for the physical custody of the child and must provide things like shelter, education, food, medical care, among other things.
- Estate guardianship refers to a guardian who can only decide on the child's money and property and can only spend the latter on the child or for the child's benefit.
Either or both of these guardianships can apply to guardianships of a child or a person with a disability or special needs.
Guardianship of a Child in Illinois
Parents are usually the ones who have the legal and moral authority to decide on care for their children. When parents cannot – for whatever reason it may be – make these important decisions, someone else must step in and do so. This means that someone else who is not a parent becomes the legal guardian of the child.
Who can become a legal guardian?
In Illinois, a legal guardian can be another family member, like a grandmother or aunt, or it could be a non-relative. To become a legal guardian, regardless of who you are, you must meet certain criteria:
- be a U.S. resident;
- be at least 18 years of age;
- be of sound mind;
- be free of any felony convictions that involved harm or threat of harm to a child; and
- not be legally disabled – with the exception of blindness.
If these criteria are met, then you can seek guardianship of a child. But just because these criteria are met does not mean the court will automatically award you guardianship.
Are there different types of legal guardianships for children?
In Illinois, there are three different types of guardianship of children:
- plenary guardian;
- standby guardian; and
- short-term guardian.
A plenary guardian is a long-term legal relationship with a child and carries significant responsibility. The designation is granted only by a court when:
- the parents have both died;
- the parents are unwilling or cannot make day-to-day decisions for the child;
- the parents have voluntarily abandoned the child with another adult; and/or
- the parents agree to the guardianship.
If the parents are alive, they must receive notice of any hearing regarding the plenary guardianship. Once the court orders a plenary guardian, the guardian cannot terminate this relationship unless:
- one of the parents can now care for the child;
- someone else is eligible to be the guardian; or
- the child turns 18 years old.
The plenary guardian has full control of the child, including any assets the child may have.
A standby guardian is just that: a guardian who stands by until the parents or current legal guardian can no longer care for the child. Situations that may substantiate a standby guardian include situations where the parent or current guardian becomes sick unexpectedly, dies, or lives apart from the child (e.g., the parents are undocumented and are deported).
The standby guardian must be designated in writing as such by the parent or current legal guardian. This can be done by completing a Designation of Standby Guardian form or leaving it in a will. In both situations, there must be two witnesses who are at least 18 years old.
The standby guardian invokes his or her responsibilities when:
- the parents or legal guardian has died;
- the parents or legal guardian can no longer make day-to-day decisions for the child; or
- the parents or legal guardian agree to the new guardianship.
The standby guardian has up to 60 days to act as the full guardian. During this time, the standby guardian can go to court to apply for additional authority beyond the 60-day mark, petition for plenary guardianship, or request another person be appointed the plenary guardianship.
No court is required for a short-term guardian, but there must be an agreement in writing between the guardian and the parent and the agreement must be witnessed by two persons of the age of 18 or older. This agreement must clearly state the dates of the guardianship or the event that would terminate the guardianship.
The short-term guardian can only be responsible for the child for one year or less. There must not be any other short-term guardians at one time. And the short-term guardian does not have control over the child's assets (e.g., property or money).
Guardianship of a Disabled Person in Illinois
A guardianship is necessary when a person is unable to make responsible decisions for him or herself regarding personal care or finances due to:
- a mental disability;
- physical disability;
- development disability; or
- another special need.
That said, simply because a person – either a child or adult – has a disability does not mean he or she cannot care for him or herself. A guardianship is only required when the disabled person cannot make these types of decisions.
Much like a guardian for a child, there are three types of guardianships the State of Illinois can appoint:
- limited guardian who has the power to make decisions only about personal care or personal finances specified by the court;
- plenary guardian who has the power to make any decisions about the person's personal care or finances; and
- temporary guardian who is appointed by the court for a specific period, lasting no longer than 60 days, so that the court has time to decide if a person requires a guardian.
Contact an Experienced Family Law Attorney in DuPage & Cook Counties
If you have questions regarding guardianship, our family law attorneys at Dolci & Weiland are prepared to answer them. Contact us today to schedule a consultation at one of our conveniently located offices in Dupage County or Cook County.