Guardianship

Generally, only a child's birth parents have the legal right to make decisions about a child's upbringing and care. When parents are unable to adequately care for their children, a guardian can be appointed by a court to take care of the children, manage any property and advocate for their rights. A guardian may be a person or an institution (such as a public or private child welfare agency).

A guardian does not have to be related to the child. Parents may voluntarily request to have a guardian appointed or in cases of child abuse or neglect, an agency can petition the court to be appointed as the child's guardian. Parents retain legal rights to their children even when a guardian is appointed, unless the court terminates parental rights.

Guardians are usually appointed for children under the age of 18. However, there may be instances in which a guardian is required for a person who is considered an adult, including persons who are unable to look after their own affairs due to developmental disabilities or age-related conditions. Guardians may also be appointed for unborn children.

Requirements of a Guardian

A guardian must:

• be at least 18 years of age.
• be a resident of the United States.
• be of sound mind.
• not have been convicted of a felony.
• be capable of adequately providing for the minor on a day-to-day basis.
• not be determined by a court to have caused or substantially contributed to the minor being abused or neglected within the prior two years.
  
  

There are two types of guardians: of the person and of the estate. A guardian "of the person" cares for a child and is responsible for making all day-to-day decisions relating to that child's upbringing. A guardian "of the estate" oversees any property (real estate, income or other financial assets) which may belong to a minor. These guardians may be the same person or two different people.

A guardian has the same responsibilities as a birth parent, including feeding, clothing and housing a child, and making educational and medical decisions on their behalf.

Process

Guardians must be appointed by a court. Usually, a petition to appoint a guardian is filed with the court by the birth parent(s) or by an institution such as a child welfare agency. Parents may also name a guardian in a will or in any written form that is witnessed by two or more credible witnesses who are at least 18 years of age. Or the court may take it upon itself to appoint a guardian.

Adoptive parents and adjudicated parents (who are recognized as parents by court action) may also appoint a guardian. Parents whose parental rights have been terminated may not appoint a guardian, nor may parents who have not been recognized by a court in cases where the parents were not married at the time of the child's birth.

A child who is at least 14 years of age many nominate a guardian, subject to court approval.

A court will not appoint a guardian when a parent, adoptive parent or adjudicated parent can be found and is willing and able to make and carry out day-to-day decisions concerning a child, unless the parent agrees to the appointment or does not object to the appointment of a guardian at a hearing.

Types of Guardianship

The types of guardianship defined under Illinois law are as follows:

• Guardianship: This standard type of guardianship remains in effect until the child is 18 years of age or until it is changed or terminated by a court order. Parental rights remain in effect.

• Stand-by guardianship: This occurs when a parent(s) names a person to become guardian upon the death of the parent(s) or when the parent(s) is unable to make and carry out day-to-day decisions for the child. A court order is required for stand-by guardianship. Parents retain rights to visitation and the right to consent to adoption.

• Short-term guardianship: This type of guardianship can last no longer than 365 days. It does not require a court order to be put into effect, but it must be in writing and witnessed by two people over the age of 18. It is a private agreement between a parent or parents and the person named as guardian. Both parents must sign the form unless one parent is deceased, his or her whereabouts are unknown, he or she is unable or unwilling to care for the child, or an unmarried father's paternity has not been established by a court. The guardianship can go into effect the date the instrument is signed, on some future date, or on the occurrence of some specific event. Termination can be on a specific date, on the occurrence of a specific event or at any time the parent(s) decide.

• Stand-by adoption: Under this arrangement, an appointed person will adopt a named child when that child's parent(s) dies or at a time the parent(s) decides the adoption should become final. The parent(s) retains custody of the child until the adoption is finalized. The stand-by adoptive parent must meet the requirements of a guardian previously listed, and must be a resident of Illinois for at least six continuous months prior to starting the stand-by adoption process. The residency requirement does not apply to relatives. If the stand-by adoptive parent is married, then his or her spouse must also adopt the child. If the parent is separated, he or she must have been separated for at least one year.
  

• Subsidized guardianship: This type of guardianship is only available for children who have been wards of the Illinois Department of Children & Family Services for at least two years and in which case the goals of adoption or return to the birth family have been ruled out. In this situation, guardianship for the child is transferred from the Department to the caregiver with the possibility of continued financial assistance from the Department. This assistance may be a one-time payment to help with the cost of the transfer of guardianship, coverage for health and special care needs not paid by public or private insurance, or ongoing monthly payments. Children must be at least 12 years old if the foster parent is a non-relative but there are no age restrictions when the foster parent is a relative. The child must have lived with the foster parent for at least one year. Birth parents can consent to the subsidized guardianship or must be provided adequate notice under law. Birth parents can retain the rights to reasonable visitation and the consent to adoption.