Family Law Insight: Illinois Guardianships and How They Function

 Posted on August 17, 2015 in Guardianship

When the court determines that an adult is unable to care for himself/herself, or a child’s parents are unable to care for the child, the court will appoint a guardian. The court can appoint a guardian to have custody of the child or to manage the child’s property, or both.

If the court appoints a custodial guardian, the guardian has the right to:

• Custody of the minor child;

• Enroll the minor child in school;

• Consent to medical treatment for the minor child; and

• Apply for public benefits on behalf of the child.

Accompanying these rights come certain responsibilities. The guardian is responsible for:

• Providing the minor child with necessities (food, clothing and shelter);

• Ensuring the minor child is attending the educational institution he or she is enrolled in;

• Paying all the expenses of the minor child (unless child support can be obtained from the parent(s)); and

• Obeying all court orders regarding the minor child.

Guardianship at a Glance

When reviewing the facts about guardianship, as illustrated above, some people might confuse guardianship with adoption. There is one main difference between guardianship and adoption. Guardianship creates a legal relationship between a non-parent adult and the minor child(ren). However, it does not terminate the parental rights of the minor child(ren)’s parents, like adoption does. Likewise, when a child is adopted, the child loses all rights to inheritance from his/her biological parents. When a guardianship is established, the minor is still permitted to inherit from his/her biological parents because the parental relationship is not terminated.

Another Misconception: Guardianship vs. Guardian ad Litem

People may additionally confuse the term guardianship with guardian ad litem. A guardian ad litem, commonly referred to as a “GAL,” is different from being appointed the guardian of a minor. A GAL is appointed by the court to stand in place of the minor or disabled individual in a court proceeding. Additionally, the GAL is required to investigate the facts of the case, interview the minor child(ren), parents, parties to the lawsuit and to testify or submit written reports regarding recommendations that are in line with the best interests of the child.

Length and Termination of Guardianships

A guardianship lasts until certain events occur. However, it is important to note that only a court may remove a guardian. The events that terminate a guardianship are as follows:

• The child reaches the age of majority (18);

• The child dies; or

• The judge determines that the guardianship is no longer necessary.

A parent can always petition the court to terminate the guardianship and return the child to his/her care. However, a judge will not terminate a guardianship in this instance unless the parent can show that he or she is capable of caring for the child.

Consult a Guardianship Attorney

If a judge is contemplating ordering the appointment of a guardian in your case, you should contact an experienced DuPage County family law attorney who will be able to protect your parental rights and aggressively advocate on your behalf.