While it may not be an ideal situation, some parents may be not at a place in their lives where they are equipped to properly care for their children. In some cases, parents may recognize this reality early enough so that they can take steps to ensure their children have appropriate parental figures or guardians to guide them as they grow. The process of establishing the guardianship of a minor is fairly straightforward, though it can be technical and time-consuming.
The Illinois Probate Act is the law governing guardianship of minors, and it lays out the requirements for anyone wanting to act as a guardian. A guardian must:
- Be over the age of 18;
- Be a resident of the United States;
- Not be judged mentally or physically disabled;
- Never have been convicted of a felony.
In theory, any non-parent may apply, but unless parental rights have been terminated, each parent must agree in writing to the guardianship. It is important to remember that a properly notified parent who fails to appear during guardianship proceedings may forfeit his or her decision-making rights.
There are two different types of guardianship that may be granted, and each may be given to separate parties or both may be given to one person. A guardian of the person is the title given to the guardian of a minor who assumes responsibility for the child’s overall well-being. A guardian of the estate is appointed to a person tasked with managing the assets or property belonging to a minor. Sometimes, the two are combined. For example, if both parents pass away and leave their entire estate to a minor child, a guardian may be appointed to oversee both the physical and financial well-being of the minor child.
Probate Guardianship vs. Juvenile Court Guardianship
Sometimes, misunderstandings can occur when attempting to obtain guardianship, despite the clear language of the Probate Act, because there is a procedure available in Juvenile Court which is also referred to as guardianship. However, there are noticeable differences between the two procedures, so it is important to be clear about why you wish to obtain guardianship, as one type may not grant you the legal standing you need.
The circumstances that give rise to a probate guardianship may be similar to those in a juvenile guardianship, but the methods to obtain one are very different. Juvenile guardianships are most often awarded in court, pending investigations by Illinois’ Department of Children & Family Services (DCFS). They may lead to termination of parental rights if sufficient evidence to do so is found. Probate guardianships generally do not require contested court appearances. Parental rights are often not an issue in probate guardianships because the child’s parents are either deceased or unwilling to participate in the child’s life.
Seek Experienced Legal Help
Taking on a guardianship is an extremely difficult, but often worthy endeavor. To ensure the process goes as smoothly as possible, contact a knowledgeable Kane County family law attorney. We will work with you in understanding your responsibilities and protecting the interests of the child under your care. Call 630-377-7770 to schedule a free consultation at Bochte, Kuzniar & Navigato, P.C. today.