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What is a Court-Appointed Guardian? | Illinois Guardianship Explained

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

We answer the question, “what is a court appointed guardian?” in the context of Illinois law.  A court-appointed guardian is someone who has been granted authority by a court to care for and take responsibility for making decisions for a person who is unable to care of him or herself. A court will appoint a guardian after the potential guardian has established that he or she will act in the best interest of the ward.

In Illinois, a guardian can be appointed to the care of a minor or an incapacitated adult. In this article, we will look at “Court-Appointed Guardians for Minors in Illinois” and “Court-Appointed Guardians for an Incapacitated Person in Illinois”, as well as “Who can be a Court-Appointed Guardian in Illinois”.

Court-Appointed Guardians for Minors in Illinois

The state of Illinois recognizes the superior rights of parents to the care and custody of their children. Therefore, if either parent is still living and is capable and willing to have custody of their child, it can be very difficult for a non-parent to petition for guardianship of the minor. Circumstances do, of course, arise where the best interest and well-being of the child is brought into focus, and a non-parent can be appointed by a court to become the guardian of that child.

A 2011 amendment to the Probate Act clarified how and when a non-parent can petition for guardianship in Illinois. According to these amendments, a non-parent may be appointed as a guardian if each parent:

  • Has voluntarily relinquished physical custody of the child, and is unable or unwilling to make and carry out day-to-day child care decisions;
  • Has provided consent to the guardianship, either in court in front of a judge or through a written document that was dated, signed and notarized.
  • Failed to appear for a court hearing in which proper notice was given; or
  • Is deemed after a hearing to be unable or unwilling to make and carry out day-to-day child care decisions.    

If a court appoints a guardian for a minor, the guardian is then responsible for the day-to-day child care and well-being of the ward. This includes finding or providing a suitable living environment, ensuring the child is receiving an education, has proper access to necessary medical care, and is given access to appropriate social activities.

Court-Appointed Guardians for an Incapacitated Person in Illinois

Guardianship for incapacitated adults is the most common type of court appointed guardianship. The term “incapacitated” means that a person is either mentally or physically incapable of making or communicating responsible decisions regarding their well-being. This is an important distinction to both make and understand; just because a person has a disability (either mental or physical) does not mean they are in need of a guardian. A person with a disability must lack the ability to make sound decisions regarding their care and overall well-being for a court to appoint a guardian for that person.

The guardian for an adult can be the spouse, an adult child or parent of the ward, or any other responsible adult with whom the ward resides. Before petitioning for guardianship, the person must obtain and fill out a report indicating a person is disabled and in need of a guardian. This report can usually be found at the probate clerk’s office in the county in which the person with a disability lives. Generally, the reports require medical documentation to provide the reason for guardianship.

Once the potential guardian has filed the petition, a court hearing will be set and the prospective ward will receive a notice indicating the date, time and place of the hearing. The proposed ward and his or her relatives have the right to object a guardianship request, which would be observed at the court hearing.

The hearing is held and if the court finds sufficient evidence that the individual lacks the understanding or capacity to make and communicate responsible decisions regarding their care and well-being, it will order the guardianship. The court may also issue subsequent orders to govern the relationship between the newly appointed guardian and ward, and declare the exact actions and responsibilities of the guardian.

Guardianship responsibilities may be divided between a guardian of the person who will make decisions regarding living arrangements, education if necessary, social activities, and medical care or other professional care or treatment; and a guardian of the estate who will will make financial decisions on behalf of the disabled adult.

Who Can Be A Court Appointed as a Guardian in Illinois?

Any person who is over the age of 18 years old, is of sound mind, has not been convicted of a serious crime, and is a legal resident of the United States may be a court-appointed guardian if found suitable by the court. Various public and private not-for-profit agencies are also eligible and encouraged to participate in the guardianship role to serve in the best interest of a ward. Residential facilities where an individual may reside, however, are not eligible to become guardians as the potential for a conflict of interest exists.

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