Whether you are seeking guardianship of a minor child or an incapacitated adult, whether the situation involves a family member or not, whether there are other relatives contesting guardianship or everyone is in agreement, there is one common theme among all guardianship matters: they arise from difficult circumstances and carry significant legal responsibilities. Under these circumstances, it can be easy to misunderstand the legal requirements, overlook important procedural steps, or fail to adequately demonstrate your ability to serve as guardian. A guardianship lawyer in IL will ensure that your petition is properly prepared, that all legal standards are met, and that the best interests of the person needing protection are at the forefront.
At Katherine L. Maloney & Associates, LLC, our guardianship attorneys in Plainfield help clients understand what's at stake in guardianship proceedings. Some of the most common questions asked are answered here for you. We know that informed clients make better decisions for themselves and their families. If you want specific answers that relate to your unique situation, contact us online or at 815-556-2057 to schedule a Free Consultation.
1. What is guardianship?
Guardianship is a legal arrangement where a court appoints a person or entity to make decisions for someone who cannot make decisions for themselves due to age or incapacity. The guardian has legal authority to manage medical and/ or financial affairs for the ward (the person under guardianship).
2. Who needs a guardian in Illinois?
A guardian may be needed for minor children without parents, adults with developmental disabilities, adults who become incapacitated due to illness or injury, or seniors with dementia or Alzheimer's. Guardianship is only appropriate when less restrictive alternatives are insufficient.
3. What is a ward?
A ward is the person for whom a guardian has been appointed by the court. The ward's rights are limited based on their disability or incapacity and the scope of the guardianship order.
4. What types of guardianship exist in Illinois?
The main types are guardianship of the person (medical decisions), guardianship of the estate (financial decisions), and limited guardianship (authority over specific areas only). Illinois law favors the least restrictive form of guardianship necessary.
5. What is limited guardianship?
Limited guardianship grants the guardian authority over only specific areas where the ward needs assistance, while the ward retains rights in other areas. Illinois law presumes limited guardianship is appropriate unless evidence shows plenary guardianship is necessary.
6. How is guardianship different from power of attorney?
Power of attorney is a voluntary arrangement created before incapacity where you choose your agent, while guardianship is imposed by a court and removes some of your legal rights. Power of attorney can prevent the need for guardianship if properly executed.
7. Is guardianship permanent in Illinois?
Guardianship continues until the court terminates it, which can occur if the ward regains capacity, the ward dies, the guardian resigns or is removed, or the guardianship is no longer necessary. Guardianships are reviewed periodically by the court.
8. How much does guardianship cost in Illinois?
Guardianship proceedings typically cost $3,000 to $10,000 or more in attorney fees and court costs, depending on whether the case is contested. Ongoing expenses include annual accountings, guardian fees, and attorney fees for court appearances.
9. When is guardianship needed for a minor?
Guardianship for a minor is needed when both parents are deceased, unable to care for the child, have their parental rights terminated, or consent to guardianship. Guardianship gives someone legal authority to make decisions for the child.
10. What is the difference between guardianship and adoption for minors?
Guardianship is temporary and doesn't terminate parental rights, while adoption permanently terminates biological parents' rights and creates a new legal parent-child relationship. Guardianship is appropriate when parents may regain capacity or when adoption isn't desired.
11. Can parents choose a guardian for their minor children?
Yes, parents can nominate a guardian for their minor children in their will, and courts generally honor this nomination unless it's not in the child's best interest. However, the nomination is not binding, and the court makes the final decision.
12. How long does guardianship of a minor last?
Guardianship of a minor lasts until the child turns 18, is emancipated, the parents regain their rights, the guardian resigns or is removed, or the court terminates the guardianship. At age 18, the guardianship automatically ends.
13. Can a minor have input on who their guardian is?
Yes, Illinois law allows children age 14 and older to nominate their preferred guardian, and courts give weight to their preference. Younger children's preferences may also be considered based on their maturity.
14. Can grandparents become guardians of their grandchildren?
Yes, grandparents frequently serve as guardians when parents cannot care for their children. Grandparents must meet the same requirements as other potential guardians and demonstrate they can provide proper care.
15. Can guardianship of a minor be shared?
Yes, courts can appoint co-guardians to serve jointly if it's in the child's best interest. Co-guardians share decision-making responsibilities and must work together.
16. What happens to guardianship when a minor turns 18?
Guardianship of a minor automatically terminates when the child turns 18.
17. When is adult guardianship necessary?
Adult guardianship is necessary when an adult cannot make or communicate decisions about their personal care, medical treatment, or finances due to disability, mental illness, dementia, developmental disability, or brain injury. The person must be unable to manage their affairs.
18. What are alternatives to adult guardianship?
Alternatives include power of attorney for healthcare and property, representative payee programs, trusts, and informal family support. Illinois law requires consideration of less restrictive alternatives before imposing guardianship.
