What is guardianship?
Usually, only a parent of a child has the responsibility to decide about the care of the child. But sometimes a parent cannot or will not take care of their child. When this happens, a person that is not the parent can get legal guardianship.
Legal guardianship lets someone that is not a parent take care of the child. This person is the child's guardian. The guardian does not have to be related to the child.
Who can be a guardian?
To become a guardian, a person must:
- Be at least 18 years old,
- Be a US resident (some courts will appoint undocumented immigrants),
- Be of sound mind,
- Not be legally disabled, and
- Not have a felony conviction that involved harm or threat to a child.
A person's blindness cannot by itself prevent them from becoming a guardian.
What types of guardianship are there?
There are 3 different types of guardianshiphip of a child:
- Permanent legal guardian
- Standby guardian
- Short-term guardian (no need to go to court)Guardian ad litem (GAL)
Once someone is appointed a plenary guardian, they cannot give up the responsibility, unless a judge rules that:
- A parent can care for the child again; or
- Someone else is willing to become the guardian.
The guardianship ends automatically when the child turns 18.
To become a guardian, there must be a court case where the judge approves the guardianship. The court only can appoint a guardian if any of the following are true:
- The parents are deceased;
- The parents are uable or unwilling to make daily decisions for the child; ;
- The parent voluntarily leaves the child with another adult and does not return; or
- The parent agrees to the guardianship.
A standby guardian is a person who will take over as guardian when a parent or legal guardian can no longer care for a child. This usually happens when a parent or guardian gets sick or dies.
A parent or guardian must designate the standby guardian. This must be done in writing. There are two ways to designate a standby guardian. A designation can be a simple document witnessed by at least 2 people who are at least 18 years old. A witness cannot also be the person trying to be the short-term guardian.
The parent or guardian can designate a standby guardian by asking a court to appoint a standby guardian. The parent's or guardian's written request to the court is called a Petition for Appointment of Standby Guardian for a Minor.
The standby guardian will not have any duties or authority to care for a child until any of the following things happen:
- The parent or legal guardian dies;
- The parent or legal guardian gives consent; or
- The parent or legal guardian can no longer make or carry out day-to-day child care decisions for the child.
When one of these happens, the standby guardian automatically has the authority to act as full guardian for up to 60 days. The standby guardian must go to court to apply for plenary guardianship, or appoint someone else to be a legitimate guardian before the 60 day period ends.
Standby guardianship could be a useful safety plan for immigrant parents who are undocumented. For example, if a parent is afraid that they will be detained or deported, they can designate a standby guardian who will have authority to care for the child when the parent is unable to do so.
Some parents who are undocumented do not want to ask a judge to appoint a standby guardian because they are afraid to go to court. Or, they are afraid that the judge will ask about their immigration status. Immigration status is not necessarily a part of guardianship law in Illinois, but some judges do ask about it.
A short-term guardian is responsible for the child for one year or less. The parent or guardian picks the short-term guardian. The parent or guardian does not need to go to court, but the agreement must be in writing.
The agreement must be witnessed by at least 2 people who are at least 18 years old. A witness cannot also be the person trying to be the short-term guardian.
The short-term guardianship can't last for more than one year. The written agreement should state the exact date the guardianship ends. Or, the agreement can state that the guardianship ends if an event happens. For example, if the parent returns from active military duty. A parent or guardian can end the short-term guardianship at any time, even before the end date stated on the written agreement.
The short-term guardian does not have to be related to the child. Only one short-term guardian can exist at any one time.
If the child has assets, such as property or money, a short-term guardian will not have control over these. For a guardian to control these assets on the child's behalf, a plenary guardianship is needed.
What can a guardian decide?
A guardianship can be of the person or of the estate.
Guardianship of the person
A guardian of the person has broad power to make decisions for the child. This includes their support, care, health, and education.
Guardianship of the estate
A guardian of the estate can only make decisions about the child's money and property. Also, the guardian can only spend or use the money and property for the benefit of the child.
What is a Guardian ad litem (GAL)?
A guardian ad litem, or a GAL, is someone a judge names to look into the facts of a case. Although it has the word "guardian" in the name, the GAL is not a guardian. A GAL can recommend what would be in the child's best interests. But they cannot make any decisions for the child like a regular guardian. The GAL gives the judge their opinion about who should care for the child. The judge thinks about the GAL's opinion and then makes a final decision.[no-
Updated: June 2018