Calabrese Associates, P.C.

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b2ap3_thumbnail_shutterstock_1921584095-min.jpgWhen an adult in Illinois is sufficiently disabled such that he or she is unable to make or communicate decisions about their care, living arrangements, and finances, legal guardianship may be necessary. Illinois law provides legal protection for its adult disabled citizens and Illinois has one of the most progressive guardianship laws in the US, with helpful procedures for appointing guardians and detailing the responsibilities of guardianship. 

Serving as a guardian for a disabled adult is a major responsibility. If you are considering becoming a guardian, it is important to understand what you can expect and what will be expected of you. 

Types of Guardianships

There are two basic types of guardianships in Illinois: Guardianship of the estate and guardianship of the person. Although these can be broken down into more specific categories, these two basic types offer a helpful umbrella for understanding the different responsibilities contained within each role.

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dupage county guardianship lawyerUnder the law, adults who are at least 18 years old are presumed to be able to care for themselves and meet their own needs. However, there are some cases where a person may need help from a family member or friend. Those who have physical or mental disabilities may not have the means to support themselves once they turn 18, or elderly people may lose the ability to care for themselves if their health deteriorates. In these cases, another person may be appointed as the disabled person’s legal guardian. Those who are in these types of situations will want to understand the different types of guardianship available in Illinois.

Options for Guardianship

Two main types of guardianship determine the responsibilities a legal guardian will have in certain areas of the ward’s life (the person being cared for). A person appointed as a guardian of the person will provide personal care for the ward, ensuring that they have a place to live and receive the proper nutrition and medical care while also attending to their everyday needs. A person or organization that is appointed as a guardian of the estate will have the responsibility to manage the ward’s property and financial affairs.

For each of the main types of guardianship, a specific form of guardianship will apply depending on the amount of assistance the ward will need and the amount of time a person will serve as their guardian. Depending on the circumstances, a person may be appointed in a:

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Can I Become My Sibling’s Legal Guardian in Illinois?Unfortunately, not all children have two parents who love and properly care for them. Some children must endure the tragedy of losing one or both parents at a young age, while others have their parents stripped from them as decided by the court system. In most cases, these difficult decisions being made by the court are in the best interests of the child, even if the child is too young to see it that way. If family members are unable to care for the adolescent, they will be entered into the foster care system to be taken care of by volunteer foster families. However, for those who have siblings age 18 or older, they may have an alternative option: legal guardianship.

What Is Legal Guardianship?

Many children who are on the brink of joining the foster care system have spent much of their lives caring for themselves or have been lucky enough to have an older sibling who has taken on a parental role in their lives. However, without legal guardianship rights, the child will not be able to remain in their care. Illinois law allows all adolescents to have at least one legal guardian, and in the absence of their parents, a close family member may take on this role. Children over the age of 14 can grant consent to guardianship requests, but those under this age must rely on the court’s decision. In Illinois, anyone who is age 18 or older, is of “sound mind,” has not been convicted of a serious crime, and is deemed acceptable by the court can apply to be the person’s guardian. The qualifications may seem somewhat minor, but the court’s impression of the guardianship applicant can make or break your case.

What Does the Court Look For?

As is the case with all Illinois legal proceedings involving children, the court’s main purpose is to make a decision in the best interests of the child. There are a few considerations that the court will keep in mind when hearing a guardianship case:

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How to Become the Guardian of a Minor in IllinoisThere are situations in which a child’s parents may be unable or unavailable to perform their basic duties as a parent. If that happens, another adult can become the legal guardian of the child, either on a short-term basis or until the child becomes an adult. The guardian is authorized to make decisions about the child just as if they were the child’s parent. If you wish to become a child’s guardian, you will need to receive court approval. There are several important facts about guardianship in Illinois that you should understand.

Who Can Become a Guardian?

You do not need to be related to the child in order to be their guardian, but it is in the child’s best interest if you have some history of interaction. The basic requirements for being a guardian in Illinois are:

  • Being at least 18
  • Being of sound mind
  • Being a U.S. resident
  • Not having a legal disability
  • Not having a felony conviction related to harming or threatening children

When Is Guardianship Allowed?

Granting guardianship presumes that the parents are unable to make decisions regarding their child. Courts will not transfer parental rights to another adult unless there is a strong reason, such as if the parents:

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Should You Become Your Parent's Guardian?Your parents may reach a point in their old age that they are no longer able to make decisions about the important matters in their lives. Ideally, you will prepare for this possibility with them by creating a power of attorney for healthcare and finances. If you do not have these documents, you can request adult guardianship for a parent. If granted, the guardianship will allow you to manage your parent’s finances and decide how to proceed with medical treatment and living arrangements. However, you must consider the potential consequences before applying for adult guardianship:

  1. Will Your Parent Contest It?: It can be infuriating for an adult to cede the ability to make his or her own decisions. Your parent may have enough self-awareness to fight your attempts to take control of his or her life. Of course, this does not mean that your parent is mentally fit, but you may end up in a bitter court battle to obtain guardianship. Your parent may feel humiliated by the evidence that you present to prove that he or she needs a guardian. No matter the court’s decision, your relationship with your parent may be strained.
  2. Will a Family Member Contest It?: Just because your parent needs a guardian does not mean that it will automatically be you. Your other parent will be the first option to make important decisions, as long as he or she is capable of doing so. If your other parent is also mentally unfit, you may need to contest his or her decision-making powers. Your siblings may vie for guardianship over your parents and contest your attempts to take control. Ideally, you can share the responsibility with your siblings, but they may be unreasonable and unwilling to give up any power.
  3. Is Guardianship Necessary?: Becoming the legal guardian of your parent is a costly and time-consuming process. Before starting, you should question whether your parent needs a guardian in this situation. Being confused at times does not mean that he or she is incapable of making important decisions. By talking with your parent, you may get him or her to agree to take your advice on matters without requiring your legal authority.

Contact a Warrenville Family Law Attorney

Before applying for guardianship of your parent, you should check whether your parent already has documents related to the power of attorney. A DuPage County family law attorney at Calabrese Associates, P.C., can help you obtain guardianship if you need the legal authority to make decisions on your parent’s behalf. To schedule a free consultation, call 630-393-3111. 

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