Getting Guardianship of a Minor Lawyer Manual

Minor Guardianship

755 ILCS 5/11-1 et seq.

Venue

If the child is a resident of Illinois, the venue is the county where the minor resides. If the child is not a resident of Illinois, the venue is the county where his or her real or personal estate is located.

Who May Be a Guardian?

A guardian must be:

• 18 years old
• A resident of the United States
• Of sound mind
• Not disabled as defined by the Probate Act
• Not convicted of a felony that involved harming or threatening a minor, elderly, or disabled person
• Found capable and qualified by the court.

Standard

A guardian is appointed based upon the Best Interest of the Child.

Parents

It is presumed that a parent is willing and able to make decisions concerning the care of a child, but this presumption may be rebutted by a preponderance of the evidence.

Standby Guardian

755 ILCS 5/11-5.3

A parent may designate in a will or other writing a qualified person to assume care of a minor or unborn child if the parents become incapacitated or die. The designation must be witnessed by at least 2 credible witnesses, age 18 or older, neither of whom is the standby guardian.

The Court lacks jurisdiction to appoint a standby guardian where a minor has another able and willing parent whose whereabouts are known unless such parent consents or fails to object after receipt of notice.

Short-term Guardian

755 ILCS 5/11-5.4

A parent may designate in writing, without court approval, a qualified person to assume the short-term care of a minor or unborn child. The document must be dated, and identify the parent, child, and short-term guardian. It must be signed by the parent and short-term guardian and witnessed by at least 2 additional credible witnesses, age 18 or older. The appointment is effective immediately or on a date certain as listed and extends for 365 days, unless the document specifies the termination of the short-term guardianship at an earlier specified date or event. A short-term guardianship can be revoked at any time.

A short-term guardian is inappropriate where the child has another able and willing parent whose whereabouts are known unless such parent consents by signing the document of appointment.

Practice Notes

Refer uncontested guardianships to the Clerk of Court.

Advise clients that the following documents will be necessary:

• Certified copy of minor’s birth certificate
• Guardian must have picture ID
• A copy of death certificate if either parent is deceased
• If the father is on the birth certificate, his consent will be required, or service will be attempted. Service will delay the appointment of a guardian

Advise the client to have the following information:

• Names and contact information for as many relatives of the child as possible
• Name and contact information for any person with custody of the child
• Facts concerning the necessity of the guardianship
• Any written statements of guardianship for the child
• Any facts concerning any court cases concerning the child
• Any facts concerning the consent of the child’s living parent(s) to the guardianship or the unwillingness or unsuitability of the living parent(s) to care for the child.