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Kevin O'Flaherty

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 for themselves. A court will appoint a guardian after the potential guardian has established that they will act in the ward's best interest.

In Illinois, the court can appoint a guardian 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 challenging 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 are 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 could 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 childcare decisions.    

If a court appoints a guardian for a minor, the guardian is responsible for the ward's day-to-day child care and well-being. This includes finding or providing a suitable living environment, ensuring the child receives 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 essential distinction to make and understand; just because a person has a disability (either mental or physical) does not mean they need 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 where 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 hearing's date, time, and place. The proposed ward and their relatives have the right to object to 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 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 make financial decisions on behalf of the disabled adult.

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

Any person over 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 a ward's best interest. However, residential facilities where an individual may reside are not eligible to become guardians as the potential for a conflict of interest exists.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.


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