Author: David Wolowitz & Michael O'Connor, Prairie State Legal Services
Last updated: January 2013

 (Chapter 8 Section 2 from Guidebook of Laws and Programs for People with Disabilities)
 

The Probate Act of 1975 Article XI: Guardians for Minors

What Is It? A state law that provides for the appointment of permanent, standby, or short-term guardianships for minors.

What Is Its Purpose? To assure the appointment of a guardian to act in the best interest of a minor; to establish the authority and duty of guardians.

Who Can Benefit? If the guardianship is appropriate and the right person is available to act as guardian, then a guardianship can benefit a minor.

I. Your Legal Rights

Permanent Guardians

Reasons for Guardianships of Minors
As a general rule, only a child's parents have the legal right to make decisions concerning the care and upbringing of that child. Legal guardianship of a minor is the process for granting that legal authority to someone other than the child's parents. This is usually done only in cases where the child is not in the care of a parent because the parent is unable to care for the child.

How to Obtain Guardianship of a Minor
A petition must be filed in court. The petition will identify the child, the child's parents and siblings, the proposed guardian, the child's financial circumstances, and the reasons why a guardianship is needed.

A notice of the court hearing is sent to the child's parents and adult siblings and to the child, if he or she is over 14. After an investigation into the situation of the parties involved, the judge decides whether the guardianship is in the child's best interests. The law presumes that the child is best placed with a parent, so the person seeking guardianship has the burden to prove otherwise if a parent objects to the guardianship.

Guardian ad Litem
Before making a decision whether to enter a guardianship order, the judge may appoint a guardian ad litem (GAL). A GAL is someone who the judge appoints to investigate the facts of the case. The GAL's job is to recommend what would be in the child's best interests. The GAL makes a report to the judge about who should be given the responsibility for the care of the child. The judge considers the GAL's opinion in making the final decision.

What Are the Duties of the Child's Legal Guardian?
The legal guardian of a child has the same responsibilities as though he or she were the child's natural parent. This includes the duty to feed, clothe, and house the child, and to make decisions concerning the child's education and health care.

If the child has a source of income or assets, the judge may require the guardian to file periodic reports concerning how these funds are handled.

How Long Does the Guardianship Last?
The guardianship will remain in effect until the child reaches age 18, unless it is changed by court order before that time.

Standby Guardians

What is a Standby Guardianship?
A Standby Guardianship is a procedure by which a parent can name the person who they want to become the guardian of their minor children in the event that the parent should die or becomes permanently unable to care for the children.
Example: A parent with terminal AIDS has young children, and wants to arrange a guardian to care for her children when she gets too sick to care for them or dies.

By using this procedure, the standby guardian will be able to assume the care of the child immediately upon the death or incapacity of the parent or parents. In cases where a court has already appointed a guardian of the person of a minor, the guardian may designate a standby guardian.

Designation of the Standby Guardian
The document naming the person who is to be the standby guardian must be witnessed by at least two persons over the age of 18. Neither of the witnesses can be the person nominated to be the standby guardian. The statute contains a form for appointing a standby guardian, but other forms can be used as well.

Appointment of the Standby Guardian
The next step is to file in court a Petition for the Appointment of a Standby Guardian. The petition must identify the child, the child's parents and siblings, the proposed standby guardian, the child's financial circumstances, and the reasons why a standby guardianship is needed. A copy of the document nominating the standby guardian should be attached to the petition.

The person filing the petition must send a notice of the court hearing to the child's parents and adult siblings and to the child, if he or she is over 14.

At the court hearing, the judge decides whether the standby guardianship is in the child's best interests. The judge will not appoint a standby guardian if the child has a parent who is able and willing to care for the child and who objects to the appointment of a standby guardian. If the judge decides that doing so is in the child's best interest, the judge may enter an order appointing a standby guardian of the person and/or estate of the minor. For a discussion of the difference between personal guardians and estate guardians, see the section titled "Guardianship of Adults with Disabilities" in this Chapter. 

This link will take you to a program which makes the forms you need to appoint a standby guardian for a child:

For use outside Cook County:
"Standby Guardian Petition"

Cook County Version:
"Appointment of Standby Guardian"

Authority of the Standby Guardian
The standby guardian appointed by the judge does not have any authority to act as the child's guardian until:

• The child's parent, parents, or previous legal guardian has died; or
• The child's parent, parents, or previous legal guardian are unable to provide for the day-to-day care of the child.

This inability to provide for the day-to-day care of the child may be shown by the parent's own admission, or by written certification by the parent's doctor.

Immediately upon learning of the death or incapacity of the parent or previous legal guardian, the standby guardian must assume all of the duties of legal guardian of the child, in accordance with court order appointing the standby guardian.

The authority of the standby guardian to act as the child's legal guardian will last for 365 days. Within 60 days of learning of the death or incapacity of the parent or previous legal guardian, the standby guardian must file a petition in court seeking the appointment of a permanent guardian of the child.

Short-Term Guardians

What is a Short-Term Guardianship?
A short-term guardianship is a way for a child's parent or parents to appoint someone to become the legal guardian of their child for up to 365 days. In cases where a court has already appointed a guardian of the person of a minor, that guardian may appoint a short-term guardian.
Example: A short-term guardianship may be used if a parent is undergoing medical care and will be unable to care for the child for a limited period of time during hospitalization and recuperation.

A short-term guardianship cannot be given if the child has another parent whose whereabouts are known and who is willing and able to assume the care of the child, unless that parent consents.

The Short-Term Guardianship Appointment Form
It is not necessary to go to court for the short-term guardianship to go into effect. All that is required is an appointment form. The statute contains a form for appointing a short term guardian, but other forms can be used as well.

A short-term guardianship must be in writing, and be witnessed by at least two persons over the age of 18. Neither of the witnesses can be the person designated to be the short-term guardian.

The person appointed as the guardian must sign the form. Also, if only one parent is appointing the short-term guardian, then the other parent must sign the document to give their consent. The consent of the other parent is not necessary when the other parent is dead, his whereabouts are not known, he is unable or unwilling to care for the children, or he is an unmarried father whose paternity has not been established by court order.

The short-term guardianship can go into effect as soon as the form is signed, or it can go into effect at a future date or upon a specified event (such as the parent's admission into a hospital). The guardianship can last no longer than 365 days, and can specify that it will terminate upon a specific date or event. The parent can terminate the short-term guardianship at any time.

II. Where to Go for More Information

Statutes
The statute concerning guardianship of minors can be found at 755 ILCS 5/11.

The statute concerning standby guardianships for minors can be found at 755 ILCS 5/11-5.3.

The statute concerning short-term guardianships for minors can be found at 755 ILCS 5/11-5.4.

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