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How to Challenge a Guardianship | Illinois Contested Guardianships

Updated on
November 1, 2019
Article written by
Attorney Kevin O'Flaherty

In this article, we explain how to challenge and revoke an existing guardianship in Illinois.  In the case of both minor guardianship and the guardianship of an incapacitated adult, the guardianship arrangement can be challenged and revoked under Illinois law. Guardianship is a court-appointed order, and therefore requires a court order to modify or terminate the guardianship appointment.  We will discuss in detail the process for challenging guardianship of a minor and challenging the guardianship of an incapacitated adult.

How to Challenge the Guardianship of a Minor

The biological parents of the minor who is under guardianship may petition to terminate the guardianship. To do so, the parent(s) must file a “Petition to Discharge Guardianship of a Minor” with the county court in which the child resides. Once the petition has been filed, a date for a court hearing will be set. A Notice of Motion must be sent to the current guardian, others who previously received a notice when the guardianship was first appointed, and the minor if he or she is 14 years old or older.

The parents of the minor must prepare sufficient evidence in support of their claim before the court hearing. They must gather evidence that proves they are fully capable of caring for their child and that there has been a material change in circumstances since entry of the guardianship.

The guardian, in return, can also gather and provide evidence to the court that termination of the guardianship is not in the best interest of the minor.

Illinois statute lists a number of determining factors the court considers when deciding whether or not the termination of a minor’s guardianship is in the best interest of the child. These factors include:

  • The current interaction and relationship the minor has with the parents and other members of the household;
  • The parent’s ability to provide the child with a safe, nurturing environment;
  • The relative stability of the guardian, the parents and the minor;
  • How the minor has adjusted to his or her home, school and community;
  • The amount of time the minor has lived with his or her parents and the guardian;
  • The nature and extent of the parent’s visitation with the minor during the guardianship, and also the guardian’s willingness and ability to facilitate visitation.

Upon hearing each party’s evidence, the court will decide whether to terminate the guardianship, modify the appointment in any way, or leave the guardianship appointment as is.

How to Challenge the Guardianship of an Incapacitated Adult

In the case of adult wards challenging a guardianship order, the ward may choose to challenge due to a change in his or her capabilities of caring for and making sound decisions for himself or herself.  The ward therefore must argue that he or she should no longer be considered legally “disabled” to the extent that a guardianship is necessary. Regardless of his or her disability, however, a ward always has the right to request the termination or modification of the guardianship order.

The ward or a person on behalf of the ward, or even an attorney, may file a petition with the court to terminate the guardianship. In some cases, the court may appoint a guardian ad litem (GAL) for the ward. The guardian ad litem will then investigate the ward’s circumstances and reports his or her findings to the court. Also upon the filing of the petition is the requirement of a notice being sent to the ward, the guardian and others who received notice of the initial court proceeding to appoint the guardian.  

During the hearing, the ward is entitled to representation by a court-appointed attorney, entitled to a jury of six people, and will have have the ability to present evidence and cross examine witnesses from the other side.  To learn more, check out our article, Illinois Adult Guardianship Hearings Explained.

At the conclusion of the hearing, the court will set forth an order based on the hearing’s findings. Generally, these findings can either result in a dismissal of the petition and keeping the guardianship as is, termination of the disability adjudication (declaring the individual is no longer disabled) and termination of the guardianship, modifying the responsibilities of the guardian, or making any other order the court deems to be in the best interest of the ward.

How to Challenge a Guardianship | Illinois Contested Guardianships
Author

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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