Guardianships of Minors
There are four types of guardianships of minors, and all guardianships are defined in and according to the Probate Act of 1975 (755 ILCS 5/11 et seq.). For these purposes, minor is defined as someone under the age of 18.
The four types of guardianships are:
1) General Guardian
2) Short Term Guardian
3) Standby guardian
4) Successor guardian
I. General Guardian
1. Overview:
A guardian is a court-ordered appointment of a guardian of a minor until that minor turns 18 years old. The court can appoint three types of guardians: a) guardian over the minor person, b) guardian over the minor estate, or c) a “plenary” guardian which cares for both the minor person and estate.
a) Guardian of person: The minor must live with the guardian of the person, and this guardian is responsible for the support, care, comfort, health, education and maintenance and appropriate professional services.
b) Guardian of estate: The estate guardian is appointed the care, management and investment of the minor’s estate. The estate guardian can make a will or create trusts for the minor.
c) Plenary guardian: This guardian is appointed to care for the child and the child’s estate.
2. Restrictions:
a) Individuals cannot become guardians if:
1) Younger than 18 years old
2) Not a resident of the United States
3) Of unsound mind or a disabled person
4) Convicted of a felony
5) Found by the court “incapable of providing an active and suitable program of guardianship”
b) 755 ILCS 5/11-5 states that the court lacks jurisdiction for the appointment of a guardian of a minor if:
1) The minor has a living parent, adoptive parent or adjudicated parent, whose parental rights have not been terminated, whose whereabouts are known, and who is willing and able to make and carry out the day-to-day child care decisions concerning the minor, or
2) There is already a guardian for the minor appointed by a court of competent jurisdiction.
c) The court will also not appoint as minor person guardian who “has caused or substantially contributed to the minor becoming a neglected or abused minor.” However, if two years has passed since the alleged abuse incident, then that person can be appointed as guardian if it is “in the best interests of the minor.”
3. Requirements:
a. Writing
i. A form for petition for the appointment of a guardian and the order appointing guardianship of minor may be used (attached as Exhibits A and B).
ii. A parent or any other guardian of the minor can designate in any writing, including a will, a person to be appointed as guardian of the minors’ person, estate or both. This other form of writing must include (if known):
a. Name, date of birth and residence of minor;
b. Names and addresses of the nearest relatives of the minor;
c. Name and address of the person having custody of the minor;
d. Approximate value of the personal estate;
e. Amount of anticipated gross annual income and other receipts;
f. The name, address, age and occupation of the proposed guardian;
g. The facts concerning the written designation of the guardian, if any, and a copy of that designation
h. The facts concerning any court actions pending concerning the minor or the parents of the minor, and whether any guardian is currently acting for the minor.
In addition, if the petition is being brought by a former standby guardian to attain full guardianship, this writing must also include:
i. The facts concerning the standby guardian’s previous appointment, and
j. The date of death of the minor’s parent(s), or the facts concerning the consent of the minor’s parent(s) to the appointment of the standby guardian as guardian, or the willingness and ability of minor’s parent(s) to make and carry out day-to-day child care decisions concerning the minor.
If you are petitioning for more than one minor, you can include the separate information for each minor in just one petition.
After filing the petition for guardianship, it is the duty of the petitioner to notify the minor (if 14 years or older) and to the relatives of the minor whose names are included in the petition to inform them of the date, time and place of the guardianship hearing at least three days prior to the hearing. At the hearing, a guardian ad litem may be appointed by the court to represent the minor.
b. Timelines and Activation:
The guardian’s duties become active immediately upon execution of the writing unless the writing provides otherwise. The guardianship then continues until the minor turns 18.
c. Revocation:
1) The guardianship may be amended or revoked by the court at any time, and such intention may be communicated to the guardian in any manner. Another interested party may also initiate a petition for guardianship if they believe that the best interests of the child are not being served by the current guardian. If the minor is at least 14 years of age, the child can give testimony as to their choice for custodian. However, the court does not have to abide by this recommendation.
II. Short Term Guardian:
1. Overview:
a) A short term guardian is a private, short term appointment of a guardian of a minor for up to 60 days. The appointment is made without any court involvement, but can be done while the individual is initiating the formal legal procedure for guardianship.
b) A parent may appoint a short term guardian for his/her child. Health or ability to care for the child is not a consideration.
c) The short term guardian is guardian of the minors person only (care, custody and control). However the short term guardian may apply for and receive benefits for the minor.
2. Restrictions:
a) 755 ILCS 5/11-5.4(b) states:
A parent may not appoint a short-term guardian if the minor has another living parent, adoptive parent or adjudicated parent, whose parental rights have not been terminated, whose whereabouts are known and who is willing and able to make and carry out day-to-day child care decisions concerning the minor, unless the nonappointing parent consents to the appointment by signing the written instrument of the appointment.
b) Also, if a guardian of the person has already been appointed by the Court a parent cannot appoint a short term guardian. However, the guardian can appoint a short term guardian.
3. Requirements:
a) Writing:
1. A form for appointment of a short term guardian may be used
2. Any other form or writing meeting the requirements set out in the act may be used:
i) Writing must be dated;
ii) The writing must identify the appointing parent or guardian, the minor, and the person appointed to be a short term guardian;
iii) The writing must be signed, or at the direction of, the parent or guardian making the appointment;
iv) The writing must be signed in the presence of at least two witnesses. The witnesses must be at least 18 years old and must not be the individual receiving the appointment. The witnesses’ signatures need to be contemporaneous with that of the person making the appointment;
v) The writing must be signed by the individual receiving the appointment indicating acceptance. However, this signature does not need to be contemporaneous with that of the person making the appointment;
vi) If being made by one parent the writing needs to also be signed by the minors other parent, if applicable.
b) Timeline and Activation:
1) The appointment will last for 60 days from the date the appointment is effective, unless a shorter term is specified in the writing.
2) The short term guardian’s duties become active immediately upon execution of the writing unless the writing provides otherwise.
c) Revocation:
The short term guardianship may be amended or revoked by the appointing parent at any time and such intention may be communicated to the short term guardian in any manner.
III. Standby Guardian:
1. Overview:
A standby guardian is an individual appointed by the court as the person to act as guardian in the event the child’s parents or guardian die or are no longer willing or able to make and carry out day-to-day decisions concerning the minor. This is a relatively new guardianship, created for the benefit of persons with AIDS and other conditions likely to be fatal. Stand-by guardianship permits a parent to designate a person to become guardian of their child upon occurrence of a certain condition (i.e. death, losing consciousness or ability to speak).
2. Restrictions:
1) 755 ILCS 5/11-5.3(c) states:
The court lacks jurisdiction … for the appointment of a guardian of a minor if the minor has a living parent, adoptive parent or adjudicated parent, whose parental rights have not been terminated, whose whereabouts are unknown, and who is willing and able to make and carry out day-to-day child care decisions concerning the minor, unless the parent or parents consent to the appointment or… fail to object to the appointment at the hearing on the petition.
3. Requirements:
1) Writing:
Individuals petitioning for standby guardianship must prepare their own forms (there is no current court form available). The form must include:
a. Name, date of birth and residence of minor;
b. Names and addresses of the nearest relatives of the minor;
c. Name and address of the person having custody of the minor;
d. The name, address, age and occupation of the proposed guardian;
e. The facts regarding the consent of the minor’s parent or parents or guardian to the appointment of the standby guardian;
f. The facts concerning the written designation of the guardian, if any, and a copy of that designation
g. The facts concerning any court actions pending concerning the minor or the parents of the minor, and whether any guardian is currently acting for the minor.
2) Timeline and Activation:
a) The appointment will last for 60 days from the date the appointment is effective, unless a shorter term is specified in the writing.
b) The standby guardian’s duties become active immediately upon execution of the writing.
c) Within 60 days of the commencement of the standby guardianship, the standby guardian must file a petition for general guardianship of the person, the estate or both of the minor.
3) Revocation:
The standby guardianship may be limited or terminated by a court at any time.
IV. Successor Guardian:
1. Overview:
A successor guardian is a person named guardian of a minor after the “death, incapacity, resignation or removal of a standby guardian or guardian.” This guardian is only court appointed. A successor guardian assumes responsibilities and duties bound to the original guardian or standby guardian, and therefore is bound by rules guiding guardians and standby guardians.
2. Restrictions:
The successor guardian is subject to the same restrictions as are general and standby guardians
3. Requirements:
The successor guardian is subject to the same requirements, timelines and activations and revocations as are general and standby guardians.