How Guardianship Works in Illinois for Children & Families

Updated

Learning that a doctor or teacher needs proof of guardianship before they can work with you can be a frustrating roadblock and slow down your efforts to care for a loved one. But guardianship can also be essential to help you efficiently provide care and make much-needed arrangements.

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The court can appoint a guardian for adults and minors. Guardians for minors play a role as fill-in parents to provide children's care and decision-making for school, doctors, and more. Guardians for adults also coordinate care, manage finances, and make other vital decisions when adults cannot safely do it themselves.

What Types of Guardianship Exist in Illinois?

Many types of guardianships exist to meet the needs of Illinois residents. Guardianships grant legal decision-making powers to an adult who must then look after an adult or minor.

Guardianships can encompass both personal and financial decision-making, depending on the protected person's needs. 

Who Are the Default Guardians for Minor Children, Older Adults, or Adults With Special Needs in Illinois?

When the need for a guardian arises, the proposed guardian or some other interested party must petition the court to start the process. Unfortunately, nobody automatically becomes a guardian without getting the court involved. 

Anyone can petition the court to be a guardian; often, people who are not related to the in-need adult or minor are the ones who step in to care. For example, a family friend or neighbor might become guardians of a child left in their care. 

If more than one person wants to be a guardian, the court can decide whom to appoint based on several factors: e.g., the biological relationship, the expressed wishes of the respondent, the qualifications of each proposed guardian, and the overall ability of someone to act in the ward's best interest. 

As a result, simply because they are the person’s spouse or the child's grandparent does not mean they will become the guardian. Instead, the court considers any willing parties and how capable they are of providing the care needed for the adult or minor.

If you are the person being put under guardianship, a.k.a. "the respondent," you can also choose your guardian by making a nomination in writing while you still have legal capacity. Many people take care of this while doing other estate planning like writing a will or a power of attorney.

What Forms Do You Need to File for Guardianship in Illinois?

Unfortunately, Illinois does not have standard statewide forms. However, many Circuit Courts make fill-in-the-blank documents available on their websites. First, determine the Circuit Court for your jurisdiction, and from there, check the website for probate forms. Some courts might have the forms in person even if they don't have any online.

If your circuit court doesn't offer standard forms, you will have to either make your own documents or hire an attorney to do it for you. If you need an example, look at the Lake County Circuit Court guardianship forms. All forms will be extremely similar regardless of where you file your case. 

The court requires a petition to open the case. The petition contains biographical information about the petitioner, respondent, and other interested parties whom the court needs to know about to set up the case and ensure that interested parties receive notice. 

The court also requires an "acceptance of appointment," which is how the guardian acknowledges and accepts the role's responsibilities. The court might also require that you file proposed letters and orders of guardianship, which are documents the court signs when appointing a guardian. 

After the appointment, the guardian remains responsible to the court for ongoing paperwork in the form of annual guardian's reports. The reports detail the ward's condition and care received and account for any funds the guardian manages.

How Do You File for Guardianship in Illinois?

To file a guardianship case in Illinois, contact the appropriate Circuit Court or visit their website. The forms and policies vary from court to court, but they also offer various services to help parties without attorneys, so check to see whether your court has someone who can answer your questions.

The court typically charges a filing fee, but low-income people can ask that the court waive it. Be prepared to prove your financial status if you request that the court waive the fees.

In addition to all these forms, a physician's report is one of the most important things you'll need to file as a guardian. As the petitioner, you are responsible for obtaining a letter from a doctor  describing the respondent's condition. 

The court appoints a guardian ad litem to represent the respondent's best interests. They review the medical evidence, interview the respondent, inform the respondent of their rights, and try to get the respondent's opinion of the petition. Then, they use that information to recommend to the court whether the appointment of a guardian is in the respondent's best interests.

How Do You Assign a Guardian for a Minor Child in Illinois?

A nomination to become the guardian of a minor child must be in writing. A written record best ensures that the court follows your wishes when appointing a guardian.

Many people include guardian nominations in their will. The birth of a child marks the perfect time to update your estate plan – or create one in the first place. As you consider future financial support for your child, have tough conversations about who will be taking care of them.

Guardianships can also be handy tools to delegate parental authority while the parent is still alive. A written statement nominating a specific person to serve as guardian for your children gives them a leg up when they file for guardianship with the court.  

How Guardianship Works for Minor Children

You'll find two different types of guardianships in Illinois: guardianship of the person and guardianship of the estate.

Guardianship of the person

People most commonly petition the probate court for guardianship of the person for minors. The guardianship gives a non-parent the powers of a parent; they can care for a child and make decisions for and about them. 

Guardians can enroll a child in school, make medical decisions for them, apply for government benefits, travel with them, and even manage their Social Security benefits.

Guardianships can be temporary or permanent. While permanent guardianships for a minor last until they turn 18, any party can ask the court to end it earlier. Guardianships commonly end early when one of the parents resumes caring for the child or when the guardian needs to relinquish the role. 

The court can also appoint a temporary guardian before the hearing in emergent situations where the child needs a guardian for safety. 

Guardianship of the estate

While non-parents can file for guardianship, parents can also find themselves in probate court if their minor children come into money or property worth more than $5,000. This often happens when the minor inherits money or gets a personal injury settlement or award.

A guardianship of the estate ensures that the minor's money is saved for them until adulthood. The person or entity paying the money or transferring the property to the minor will likely require proof of guardianship before releasing the funds to the parent on the minor's behalf. 

How Guardianship Works for Older Adults

As we age, we rely on our friends, family, and other support systems to help us fill in the gaps left by our aging body. Guardianships can also deal with the deficits created by an aging mind and protect people who lose their ability to make informed decisions for themselves.

Limited guardianship

The court can limit a guardian's powers to make the guardianship as minimally restrictive for the ward as possible. Ultimately, appointing a guardian removes someone's fundamental rights to determine their own lives, so it's essential to structure the guardianship to be as minimally invasive as possible. The guardian's powers can also increase over time as the ward's condition deteriorates.

Additionally, when a ward makes their decisions known while they still have the capacity, the court can further direct the guardian's actions to follow the ward's expressed wishes. 

Plenary guardianship

A plenary guardianship yields all control of the ward's estate and person to a court-appointed guardian. These guardianships should be reserved for only the most incapacitated adults who cannot make any decisions for themselves.

How Guardianship Works for Adults With Developmental Disabilities or Special Needs

Guardianships for adults with developmental disabilities or special needs work much the same way as they do for elderly adults. 

Limited or plenary guardianship

Guardianships for special needs adults can entail personal decision-making, such as medical needs or living arrangements. They can also focus on financial matters; these types of guardianship are called guardianships of the estate.

A limited guardianship restricts the guardian's powers to certain areas. For example, adults with developmental delays can often manage day-to-day living needs but need assistance from a guardian with accessing government benefits or managing their money.

Temporary guardianships

If a loved one becomes severely injured in an accident or an unexpected illness, you might need to petition the court for temporary guardianship. Temporary guardianships applications in Illinois operate on an expedited process to put a guardian in place when one is immediately required due to unforeseen circumstances. 

If you’re applying for a permanent guardianship, you can also request a temporary one in the meantime. A temporary guardianship can stand-in until the formal process with notice, service on the respondent, and a hearing take place.

Frequently Asked Questions: Guardianship in Illinois

For additional questions and more complicated situations, consult an attorney experienced in elder or protective proceedings law for detailed advice about your case.

How long is temporary guardianship in Illinois?

State law caps temporary emergency guardianships at 60 days. The court typically issues them for 30 days and can extend it up to another 30 days.

What's the difference between guardianship, conservatorship, and custody in Illinois?

Many states use the term "conservatorship" to mean a guardianship that exclusively deals with financial matters. As such, courts in those states might appoint both a guardian and a conservator for a ward.

In Illinois, the state grants limited or plenary guardianship of the person or the estate. Guardianships of the person address medical and care decision-making, while guardianships of the estate address finances. The court can restrict guardianship, meaning that a guardian has only certain powers. Or, the court can issue a plenary guardianship that gives a guardian full decision-making power over all issues.

Finally, custody cases deal with the parenting time, decision-making, and child support orders for a minor child. Custody cases divide those responsibilities between a child's parents, regardless of whether they were ever married. A guardianship case is not an appropriate alternative for a custody case between the child's parents. Instead, guardianship grants authority to a non-parent adult, like a friend or a grandparent. 

Can you get guardianship without going to court in Illinois?

Only a court can issue a guardianship of order. 

For an alternative to dealing with the court, consider making a power of attorney while you're still well and can make decisions for yourself. Many families successfully navigate a loved one's final illness, and even long-term dementia, through a well-crafted power of attorney.

Powers of attorney can also give another adult the authority to care for your minor child. 

How do you know if someone needs a guardian?

The court determines whether the respondent meets the statutory criteria for the appointment of a guardian. Acceptable standards include mental deterioration, physical incapacity, mental illness, disability, and inability to manage personal or financial decision-making because of the condition. 

Just because someone is elderly, disabled, or mentally ill is not a sufficient reason to need a guardian, and many such people manage their affairs very effectively.

Consider Petitioning for a Guardianship Sooner Rather Than Later

While accepting the role of guardian comes with responsibilities, many families benefit from starting the process early before an emergency happens. People do navigate caring for loved one for years without guardianship, but it's often a matter of luck and chance. A guardianship opens doors for new levels of care you can provide. If it's in your future, you may as well take advantage of its benefits from the beginning.


Sources:
  1. Illinois Guardianship and Advocacy Commission. "A Practitioner's Guide to Adult Guardianships in Ilinois." Jan. 2007, 2illinois.gov
  1. Illinois General Assembly. "Illinois Compiled Statutes." Ilga.gov

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