Disputes Over Who Will Serve as Guardian

Types of Guardianship Disputes in Illinois | Common Causes of Guardianship Litigation

Video by Attorney Kevin O'Flaherty
Article written by Illinois & Iowa Attorney Kevin O'Flaherty
Updated on
November 1, 2019

In this article we explain common legal disputes that may arise an Illinois guardianship for either a disabled adult or a minor, including disputes over who will service as guardian, disputes over whether guardianship is necessary, breach of fiduciary duty in guardianship cases, termination of a biological parent’s rights in order to appoint a guardian, and removal of a guardian based on changed circumstances.  

Disputes Over Who Will Serve as Guardian

One of the most basic and common disputes that can arise in guardianship is determining who will serve as a child’s or disabled adult’s guardian. Choosing a guardian is an important task that must be given to a responsible person, typically someone who is in the ward’s close family. This dispute can be settled by having a guardian ad litem represent the ward in the guardianship hearing in order to ensure that the best interests of the person acquiring a guardian are being taken into consideration.  A guardian ad litem is an attorney appointed by the probate court to investigate the facts surrounding the guardianship, and make recommendations to the court regarding the best interests of the ward.  

Disputes Over Whether Guardianship is Necessary

In the context of guardianships for disabled adults, the potential ward or a member of his or her family may argue that the potential ward is capable of managing his or her own affairs, and that therefore a guardianship is not necessary.  In a contested guardianship, both sides will call expert medical witnesses who will prepare physicians reports to the court, presenting their professional opinion as to the need for a guardianship.  The guardian ad litem will also investigate the facts and present a report with a recommendation on the subject.  Finally, each side may call non-expert witnesses who are close to the potential ward and can testify as to their opinions as to the potential ward’s mental and/or physical capacity.

Breach of Fiduciary Duty in Guardianship Cases

Once a guardian is appointed, another legal dispute may arise with concern to the guardian’s management of the ward’s estate, especially if there are significant assets involved.  The ward or third parties may seek to have the guardian removed as well as pay damages if the guardian has either negligently or intentionally breached his or her fiduciary duty to the ward by mismanaging his or her assets or using the position of guardian to benefit the guardian at the expense of the ward or other third parties.  

Guardians Overreaching the Powers of a Limited Guardianship

Some courts will appoint a limited guardian with clearly specified powers, as opposed to a plenary guardian with general authority to manage a ward’s estate.  This is most common if a disabled adult is able to handle some but not all of his or her own financial decisions. In this case, another dispute can arise wherein the guardian is found to be attempting to manage too much of the estate, or overriding the disabled adult’s will in situations that exceed the guardian’s court-appointed authority.

Termination of a Biological Parent’s Parental Rights in Order to Appoint a Guardian

Guardians for minor children cannot be appointed until both biological parents’ parental rights have been terminated.  Potential guardians cannot have “standing” or the right to petition for guardianship, until this takes place.  If a guardian does not have standing to petition for guardianship, the case will be immediately denied by the court. Guardians can obtain standing to be able to file when both parents have voluntarily given up custody of the child, the parents do not appear to the hearing or have consented to having a guardian for their child in a signed document.  

Guardians may also petition the court to involuntarily terminate a biological parent’s parental rights by demonstrating that the parent is unable or unwilling to care for the minor.

Removal of a Guardian Based on Changed Circumstances

Guardians may be removed if it can be shown that the guardianship is no longer necessary.  If a parent believes that a child no longer needs a guardian they must appear in court with sufficient evidence that their situation has dramatically changed since the order for a guardian was put in place and that they can now take care of a minor. If a disabled person would like to get rid of their guardian, a doctor is typically required to present evidence that the person is capable of making his or her own decisions responsibly.

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Disputes Over Whether Guardianship is Necessary

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