Family & Safety

What is guardianship?

Usually, only a parent of a child has the authority to make decisions about the care of a child or property belonging to a child. Sometimes, a parent cannot or will not make decisions for their child. When this happens, a person who is not the parent can become the legal guardian of the child. 

Legal guardianship When a person is appointed by a judge to take care of a child or an adult with a disability lets someone who is not a parent make decisions for a child, just as a parent would. The person with authority to make decisions about a child's care or property is called the child's guardian. The guardian does not have to be related to the child. 

Who can be a guardian?

To become a guardian in Illinois, a person must:

• Be at least 18 years old,
• Be a resident of the United States (some courts will appoint undocumented immigrants),
• Be of sound mind A person who has full mental capabilities and is able to understand, think, and reason ,
• Not be legally disabled, and
• Not have a felony A serious crime that is punishable by more than one year in prison conviction When someone is declared guilty of a crime by a court 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 three different types of guardianship:

• Plenary guardian (long-term),
• Standby guardian, and
• Short-term guardian (no need to go to court).

Plenary guardian

A plenary guardian is a long-term, permanent guardian. 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 plenary guardian, there must be a court case where the judge approves the guardianship. The court can appoint a guardian only if any of the following are true:

• The parents are deceased,
• The parents are unable or unwilling to make daily decisions for the child,
• The parents voluntarily leave the child with another adult Any person 18 years old or over and does not return,
• The parents agree to the guardianship, or
• The parents are detained Includes juveniles held prior to a court makes a decision about their case,  awaiting transfer to adult criminal court, or awaiting a hearing or trial in adult criminal court. , arrested, removed, or deported because of immigration issues.

Standby guardian

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 may happen when a parent or guardian gets sick, dies, or lives apart from the child for an extended period of time. 

A parent or guardian must designate the standby guardian. This must be done in writing. A designation can be a simple document such as the Designation of Standby Guardian form. It must be signed and witnessed by at least two people who are at least 18 years old. Effective January 1, 2024, a witness A person who answers questions in court under oath may be electronically present and sign electronically. A witness cannot also be the person trying to be the standby guardian. A parent may also designate a standby guardian in their will. A court must then approve the selected person.

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 When someone gives permission for someone else to do something ,
• The parent or legal guardian can no longer make or carry out day-to-day childcare decisions for the child, or
• The parent or legal guardian is detained, arrested, removed, or deported because of immigration issues.

When one of these happens, the standby guardian automatically has the authority to act as full guardian for up to 60 days. Within those 60 days, the standby guardian must go to court to apply for further authority to act as the standby guardian. Or they can petition (noun) A written request to a court (verb) To request from a court for plenary guardianship or appoint someone else to be a 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 the 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.

Short-term guardian

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 signed and 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.  Effective January 1, 2024, a witness may be electronically present and sign electronically.

The written agreement should state the exact date the guardianship ends. It usually can't last for more than one year. However, if the guardianship started because the parents were detained, arrested, removed, or deported because of immigration issues, it can be renewed for another year.

The agreement can also state that the guardianship ends if an event happens. For example, if the parent returns from active military duty A legal obligation to do something . 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 Anything a person owns that has financial value , 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. The exception is that a short-term guardian can apply for and receive government benefits on behalf of the child.

What can a guardian decide?

A guardianship can be of the person and make personal care decisions, or of the estate All of the property a person owns at their death and make decisions about property. Guardianship can be of the person, of the estate, or both, depending on the situation. 

Guardianship of the person

A guardian of the person has broad power to make decisions for the child's care. A guardian of the person is responsible for physical custody of the child and must provide food, shelter, education, and ordinary medical care. A guardian of the person can, if required by law due to the age of the child, consent to marriage, enlistment in the armed forces, and medical treatment. A guardian of the person can also represent the child in legal proceedings.

Guardianship of the estate

A guardian of the estate can only make decisions about the child's money and property. Also, the guardian of the estate 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 A person appointed by a judge to help the judge make a decision in a guardianship or family law case , 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 that can make decisions for the child. 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.