In this article, we explain the difference between guardianship and adoption in Illinois. Both court-appointed guardianships and adoptions of a minor give authority and responsibility for the care and decision making regarding the child. However, guardianship and adoption differ greatly from a legal standpoint. First, guardianship is temporary while adoption is permanent. Second, the biological parents retain superior rights as parents during a guardianship under Illinois law.
Guardianship does not end the legal relationship between a child and his or her biological parents. The biological parents, if living, are legally required to provide financial support for the child. If a biological parent passes away while the child is under the care of a guardian, the child has certain and automatic inheritance rights, even if a will doesn’t exist.
Although a guardianship grants a non-parent authority to make decisions and care for the child, it does not diminish the birth parent’s rights over the child. Biological parents have the right to petition for the end of the guardianship at any time. To be successful, they must provide the court with evidence to show they can adequately care for the child.
Adoption permanently changes the legal relationship between the child and biological parent, with the parent relinquishing all rights and obligations to the child. The biological parent is not required to pay child support and does not have any financial responsibility toward the child.
Unless determined and agreed upon by both parties during the adoption process, the biological parent has no visitation rights once the adoption is made legal. Also, once an adoption is legal, the biological parent cannot revoke the adoption or try and turn it around. The adoptive parents become the sole and legal parents of that child.
The legal rights of a minor when a biological parent passes away are also different depending on whether the child is a ward in a guardianship relationship or has been adopted. If a birth parent dies while his or her child is under the guardianship of another adult, the child has inheritance rights in the deceased parent’s estate. If the child has been adopted and his or her biological parent dies, the child does not have inheritance rights, unless specifically stated in the decedent’s will. Adopted children assume the rights of a natural child, including rights of inheritance from their adoptive parents.
Illinois recognizes the superior rights of parents over the care and custody of their children. Under Illinois law, both adoptions and guardianships may only be granted if the child’s biological parents consent to the agreement, have been found by a court to be incapable or unwilling to provide the necessary care for the child, have passed away, or cannot be located.
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