What Happens to My Children If I Become Incapacitated?

Posted on in DuPage County Divorce Lawyers

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.



Recent Blog Posts



Wheaton Office

400 S. County Farm Road
Suite 200
Wheaton, IL 60187


Oswego Office

123 W. Washington Street
Suite 334
Oswego, IL 60543


Contact Us