Category Archives: Guardianship

Awarding Temporary Guardianship of Your Child

DuPage County guardianship lawyerTemporary custody is usually decided during divorce, as the child’s parents are likely to split up before the marriage is dissolved, and is subject to change when the divorce is finalized. After all, divorce typically takes many months, as assets and debts need to be accounted for, child support and spousal support are debated, and division of property is negotiated.

However, in some cases not associated with divorce, a parent (or parents) may wish to willfully give temporary guardianship to another party. For example, a mother with full legal custody may wish to grant the child’s father guardianship if she knows she will be leaving the country for an extended multi-month work trip, during which she will be unable to take care of her child. A guardianship attorney can help make this possible.

Who Can Be Given Custody?

According to 755 ILCS 5/Probate Act of 1975, temporary guardianship may be awarded to a relative or family friend when the parent of a child temporarily cannot provide care. A parent can decide who they want to have as the temporary guardian of their child as long as that person is at least 18 years of age, not a felon, a U.S. citizen, not legally disabled, and of legally sound mind. Typically, a parent will choose:

  • The child’s other parent;
  • A grandparent of the child;
  • A godparent;
  • Another close family relative; or
  • A close family friend.

In What Situations Would a Parent Award Temporary Custody of Their Child?

Work Obligations: Americans travel for work more now than at any other time. High-income earners ($75,000 or more per year) are significantly more likely to travel for business, with 58.3 percent of respondents to a survey answering “definitely yes” or “probably yes” to a question of whether or not they would consider themselves a frequent business traveler. Some employees are required to work for extended periods out of state or country. For a single parent with considerable work obligations, such as long hours or business trips, obtaining a close family member or friend, or the child’s other parent, to fill in as a temporary guardian may be a good short-term option.

Other Responsibilities: Whether you have educational commitments or an obligation to care for a sick parent, you may not have the time to care for your child as well.
Financial Problems: A parent who cannot afford to take care of his or her child may opt to grant temporary custody.

Temporary Incapacitation: If a parent knows they are going to be sick, with cancer, for example, they can grant temporary custody to another person. The mean number of days per stay in a hospital is 12.5 for admissions due to cancer-related pain, and many cancer patients are admitted numerous times during 12-month periods. Or, if the parent became injured or ill and is expected to require many weeks or months of recovery time in the hospital, they may wish to give temporary custody.

Contact a Wheaton, IL Guardianship Attorney

When awarding temporary custody, you need to ensure you are given visitation rights, as well as set the duration, where the child will live, and other financial agreements. Let the experienced DuPage County child guardianship attorneys at the Andrew Cores Family Law Group help. Call us at 630-871-1002 to schedule a free consultation.

Sources:

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4374858/

https://skift.com/2014/09/22/travel-habits-of-americans-only-10-percent-of-americans-travel-frequently-for-business/

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075500050HArt.+XI&ActID=2104&ChapterID=60&SeqStart=12100000&SeqEnd=14300000

What Happens to My Children If I Become Incapacitated?

guardian, DuPage County family law attorneyMany parents have taken steps to provide for their children in the event of their passing. However, it is far less common to have a plan for cases of incapacitation or inability to provide, and this fact can cause significant issues down the road. When a parent becomes incapacitated or unable to take care of their children, things are in flux, and as such, it can be hard to determine what course is truly in the best interest of the child.

Temporarily Assigning Parental Rights

Some cases of parental incapacity are permanent, and some are temporary. If you sustain a physical injury that renders you bedridden, for example, you may be unable to take care of your children until you recover. If you encounter a reason why you are unable to adequately take care of your children, but you either know or believe that inability will not be permanent, it is possible to convey parental rights to another person for a limited time, which qualifies as a guardianship under Illinois law. The state will assume that parental rights default to your child’s other parent, in most cases, unless you specify to the contrary.

There are three types of guardianship, two of which are temporary. The first type is referred to as a short-term guardianship. Short-term guardianships do not require a court proceeding to begin, and may be tailored to end on a specific day. This is commonly used by parents who are incarcerated and have no spouse upon whom parental responsibilities will fall. The second type is a standby guardianship, which is what many choose for cases of physical and mental incapacitation. Standby guardianships are set up in advance, and if a parent becomes incompetent, the standby guardian will be appointed as full guardian for a period of 60 days. During that time, a permanent guardian must be appointed by the court, but at least for the transition period, the standby guardian may be named without court approval.

Permanent Assignation of Parental Rights

The third type of guardianship, usually just referred to as a “regular” guardianship, is permanent until a court holds otherwise. It is usually initiated by the person who wishes to be the guardian. He or she will file the petition with the court and handle the relevant paperwork. There are five qualifications that a guardian must meet: they must be over 18, a U.S. resident (not necessarily a citizen), not under a guardianship themselves, not a convicted felon, and they must not be of “unsound mind.”

If the putative guardian is not one of the children’s legal parents, but one is still living, that parent must be served a copy of the petition. Under Illinois law, a parent has the right to contest a guardianship proceeding, but they must be able to conclusively show that they are “willing and able” to make everyday decisions regarding the minor child and his or her well-being before a court will deny the petition. So if, for example, you named a sibling as your children’s guardian, but your ex-spouse contested it, he or she would have to show they were able to care for the children before he or she could get parental responsibilities. The court will not simply hand the children over to the parent if the evidence is not there.

Seek Experienced Assistance

Contemplating your own inability to care for your children can be a frightening thing, but it is generally a good idea to have a plan in place. If you need help, a skilled DuPage County child custody attorney can provide it. Call 630-871-1002 for a free consultation today.

 

Source:

http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=075500050K11-3

ABLE Accounts Could Help Your Disabled Ward

ABLE, Wheaton family law attorneysIn early May 2017, Illinois announced the opening of the statewide ABLE Act Program, billed as a life-changer for those with disabilities. The Achieving a Better Life Experience Act, known as the ABLE Act, was passed by the federal government in 2014, and states were given the opportunity to develop an appropriate program to administer the infrastructure. Illinois’s took some time to complete, but at this point, the program is open and able to receive applications. Naturally, one might wonder if applying is worth the effort. The answer is going to depend on your individual situation, especially if you or another person has guardianship over your disabled loved one.

The Program

Normally, in order to receive Supplemental Security Income (SSI), you must show that you have very few assets of your own, and your total net worth must remain under $2,000. However, as costs of living have risen and insurance companies have cut back on the coverage they will provide, such a limit is not tenable for many, especially families, who may need that supplemental income. For example, it is not uncommon for a disabled person to marry, and then promptly lose their benefits. This happens because his or her spouse’s income is counted among their own assets, as that person’s income is counted among his or her spouse’s assets. Such outcomes are patently inequitable.

The ABLE Act seeks to give families in these positions a bit of help. Disabled adults or parents of disabled children may establish ABLE accounts for themselves and pay into them without having to worry about it affecting their eligibility for SSI or other means-tested government benefits. Because many of the costs of disability care are not covered by insurance, an ABLE account may, at least in theory, be used to help pay for such aids as a certain type of wheelchair, accessible transportation, or similar things intended to improve the disabled person’s quality of life.

People Under Guardianship

While for many, ABLE accounts appear to be a significant help for the disabled in saving money and dignity, there are some factors to be aware of if you are under guardianship or are the guardian of a disabled adult. The Arc of Illinois explains that if someone is under guardianship, but he or she wishes to establish an ABLE account, it generally requires court approval to do so. It can also require a surety bond, as well as approval of all expenditures from the account, depending on the county and the nature of the guardianship. In most cases, a guardian of the person must seek approval to manage the account on the disabled person’s behalf while a guardian of the estate does not require such approval.

The rationale behind this is that generally, the disabled person is in control of the account, with no trustees or governing entity behind them. However, if someone has a guardian of the estate, by definition, the disabled person is not in control of the account. This can cause difficulties in the future, especially if the person has intellectual disabilities and may not have sufficient capacity to make decisions regarding his or her finances.

Need Help Understanding ABLE Accounts?

Overall, ABLE accounts are seen as a positive step for disabled people in terms of being able to support themselves, but the equation becomes more complex if there is a guardianship involved. Our passionate DuPage County family law attorneys can help advise you on how to ensure that your ward will be provided for and given the as many opportunities as possible to be independent. Contact our offices today to set up an initial consultation.

 

Sources:

http://www.ablenrc.org/about/what-are-able-accounts

https://www.thearcofil.org/arc-and-the-able-act-what-is-it/