Guardianship
Attorneys

Illinois law allows certain people to make decisions for others by virtue of their relationship. A common example is parents, who are presumed to have legal authority to make decisions for their children until the age of eighteen. But the probate court can also grant this authority in other situations. A guardianship is a legal relationship established by the probate court. It allows an appointee (the “guardian”) to make decisions for another person (the “ward”). If you believe you have a guardianship case, contact a Chicago guardianship lawyer at Malman Law right away.

What is Adult Guardianship?

Like other states, Illinois has enacted laws that automatically end a parent’s guardianship over a child when he or she turns eighteen years old. But there are many conditions that can prevent a legal adult from making his or her own decisions. In this case, the probate court can appoint a guardian. The guardian can be an individual, an institution, or an agency. Conditions that qualify for guardianship include:

• (1) mental deterioration (for example, Alzheimer’s or dementia)
• (2) physical incapacity (such as being in a coma)
• (3) mental illness
• (4) developmental disability

In certain cases,  “gambling, idleness, debauchery, or excessive use of intoxicants or drugs” can also qualify for guardianship. A guardianship will only be allowed in these circumstances if the adult spends wastes his or her estate in a way that exposes themself or their family to “want or suffering.”

The law favors adults making their own decisions whenever they are able to do so. Because of this, adult guardianships are usually limited in scope or duration so that the guardian does not have more authority than is necessary. In the example of gambling or intoxication, the ward will likely still be allowed to make his or her own medical decisions, but financial decisions will be at the discretion of the guardian. In the case of a temporary mental illness (such as unmedicated schizophrenia), the guardian’s authority might be revoked once the condition is managed. An adult guardianship will be limited to only those decisions the ward is not competent to make for him- or herself, and only for the time that he or she is unable to make them.

What is Juvenile Guardianship?

Parents are presumed to have decision-making authority over their minor children. But sometimes a parent cannot or will not exercise this authority. In this case, other adults can petition the court for a guardianship of the child. You do not have to be related to the child to be appointed as a guardian. (If you are not a relative, you must send notice of your petition to the relatives. The child must also receive notice if he or she is at least fourteen years old.)

A parent can agree to a short term guardianship of one year or less. If the agreement is in writing and witnessed by two other adults, it does not need to be approved by the probate court. A parent can also execute a document appointing a “standby guardian,” who will act as guardian only if the parent becomes unable to make decisions for the child. When this happens, the standby guardian can act for up to sixty days before he or she goes to the court for a permanent appointment.

When a parent is unable to choose another guardian, the court must appoint a “plenary guardian.” This is a long-term guardianship that does not end until the child turns eighteen. The plenary guardian cannot give up his or her role unless the parent becomes unable to make decisions for the child again, or there is another person willing to act as the guardian. Because the long-term guardianship drastically affects parental rights, it cannot be established unless:

• The parents agree to the guardianship;
• The parents voluntarily leave the child with another adult and do not return;
• The parents are arrested, detained, or deported due to immigration issues; or
• The parents are deceased.