In Illinois, a guardianship is created when when the court grants legal decision-making authority to an individual on behalf of another person who is incapable of or cannot reasonably make such decisions themselves. Persons subject to guardianships include minors, since they lack the legal authority to make such decisions, adults with severe mental or physical disabilities or impairment, elderly persons suffering from dementia or mental decline, and adults suffering from severe mental health conditions, among many others.
How Does Guardianship Differ from Parenting Rights and Responsibilities?
A guardianship can include the right to act as a parent and take on parental responsibilities for minor children, but it does not apply to the child's natural parents, who may seek parenting time without establishing guardianship.
Typically, persons who seek guardianship of minor children include stepparents, grandparents, aunts and uncles, adult siblings, extended family or close friends of the family when a child's parents have died, or are unable or unfit to continue serving as caregiver.
How Does the Court Decide Guardianship Cases?
Guardianship motions are decided on a case-by-case basis, and the court considers many relevant factors, including:
- The fitness and motivations of the persons seeking guardianship;
- The wishes of the person subject to potential guardianship;
- Clear and convincing evidence as to the mental capacity of the potential ward;
- The type and severity of the potential ward's disabilities;
- Whether the potential ward's condition may continue to decline or fail to improve;
- Testimony from physicians, psychologists, therapists, teachers, and other professionals familiar with the case; and
- The previously expressed wishes of the child or children's parents who have passed away.
What May Make Guardianship Necessary or Desirable?
Several common situations can prompt the need for establishing an official guardianship. In many instances, caregivers are already serving the role of guardian, without having established the legal relationship. Some situations that may make guardianship necessary or convenient include:
- Enrolling a minor in school or an adult in an adult daycare program;
- Making important medical decisions;
- Having the legal authority to receive private information protected by law, such as medical or educational records;
- Committing a loved one to psychiatric treatment, rehab program, residential facility or nursing home without their consent;
- Receiving public assistance or benefits on behalf of the potential ward;
- Obtaining parenting rights when a parent is unfit or has abandoned the child; and
- Carrying out the wishes of parents who have named preferred guardians for their children in a will.
Consult an Experienced Guardianship Attorney in Illinois
Whatever your reasons for seeking to serve as a guardian of your loved one, your experienced DuPage County family law attorney can help protect your best interests, and those of your potential ward. Contact us for professional help today.