Calabrese Associates, P.C.

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Preparing a Legal Guardian for Your Children

Posted on in Guardianship

Preparing a Legal Guardian for Your ChildrenProtecting your children means preparing for their needs in case you can no longer be their parent. Your death, incapacitation or incarceration would prevent you from performing your parental duties. Planning for your absence is particularly important for single parents. If the other parent is not available to assume the allocation of parental responsibilities, your children must have a legal guardian to care for them. You can appoint a standby guardian to immediately take care of your children in the event that you are no longer able to.

What Is Guardianship?

A guardian is a person that a probate court appoints to oversee a child’s care when a parent is unable to. The legal parent retains his or her parental rights during guardianship and may reassume parental responsibilities once a court determines he or she is capable of doing so. To qualify as a guardian, a person must be:

  • At least 18 years old;
  • A U.S. resident;
  • Mentally and physically capable of caring for a child; and
  • Free of felony convictions that involved harming a child.

A court can appoint a guardian on a short-term or permanent basis. Parents commonly select a family member or trustworthy friend as a standby guardian.

When Guardianship Is Needed

A probate court cannot assign guardianship if the children have another parent who is capable of caring for them. The court cannot infringe on a legal parent’s rights, unless he or she is:

  • Missing;
  • Deemed unfit; or
  • Unwilling to assume parental responsibilities.

If no parent is available, a child must have a guardian until he or she becomes a legal adult. However, adults may retain a guardian if they have a physical or mental disability that prevents them from making or expressing their own decisions. Illinois law also includes a provision for someone to assume guardianship over an adult whose addictive behavior causes him or her to waste family financial resources.

Appointing a Guardian

In order to name a standby guardian, you must designate a person as such in writing and file a petition with a probate court. However, standby guardianship cannot last longer than a year. If guardianship is needed for more than a year, the guardian must apply for permanent guardianship. The court will hold hearings to decide whether guardianship is needed and who can best serve as the child’s guardian.

Legal Guardianship

Naming a standby guardian can ensure that someone will be immediately available to care for your children if you become incapable of doing so. A DuPage County family law attorney at Calabrese Associates, PC, can guide you through filing a petition to appoint a guardian. To schedule a consultation, call 630-393-3111.


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