Guardianship is the legal authority to make decisions for another person. This legal process is used when an individual is unable to make or communicate sound decisions about their own person or property. It may be necessary in the case of a person with mental, physical, or developmental disabilities.
How does guardianship work?
A guardian is appointed by the court to make decisions on behalf of another person, referred to as the “protected person.” Courts have the flexibility to tailor guardianship to meet the needs of the protected person under the Illinois Probate Act. Depending on the decision-making capability of the protected person, the court may appoint a:
- Limited guardian: In this case, the guardian is granted the power only to make certain decisions about the personal care or finances of the protected person, as specified by the court.
- Plenary guardian: In plenary guardianship, the guardian generally has the power to make all decisions about finances and personal care for the protected person.
- Temporary guardian: The court may appoint a temporary guardian to serve from the time the petition for guardianship is filed until the conclusion of the hearing in which the matter of guardianship is decided. Temporary guardianship lasts no longer than 60 days. It is a short-term remedy that is utilized only where existing harm or emergency has been demonstrated.
When is guardianship needed over a child?
Guardianship over a child may be needed if no parent is available to care for the child. Legal guardianship allows someone who is not the child’s parent to make care decisions for the child in the same way a parent would. To be granted guardianship over a child, you must prove to the court that it is in the child’s best interests.
Who can serve as a guardian in Chicago or North Shore?
Family members are not automatically appointed as the guardian of a protected person. The court determines if guardianship is needed and who will serve as guardian. However, a family member may petition the court to be named as guardian, and a disabled person may express a preference to the judge. Regardless of the relationship, the court appoints the person who will make the best guardian and act in the best interests of the protected person.
What are the qualifications for guardianship?
A person who serves as a guardian must be 18 years or older, of sound mind, a legal resident of the U.S., and must not have been convicted of a serious crime. Not-for-profit agencies, both public and private, are eligible to participate in guardianship. However, agencies providing residential services to disabled people who reside in their facilities may not serve as guardians.
What is the process for obtaining guardianship?
For a guardian to be appointed by the court, a petition must be filed by an “interested person.” The petition must provide basic information about the person alleged to need guardianship, including that person’s name, address, and date of birth. A report must be filed with the petition, including a doctor’s description of the mental and physical capacity of the person, and any relevant evaluations that would help the judge determine if guardianship is needed and what type.
A guardianship hearing will be set within 30 days of the date the petition was filed with the court. The person alleged to need guardianship (respondent) must be served with a summons and a copy of the petition. At the hearing, evidence is presented about the respondent’s mental faculties, health, lifestyle, housing, and finances. The respondent has the right to a jury trial, to be represented by an attorney, to present evidence, and to cross-examine witnesses.
Guardian ad litem
“Ad litem” is a Latin term meaning “for purposes of the legal action only.” The court may appoint an attorney or layperson to serve as guardian ad litem in a guardianship matter. The job of the guardian ad litem is to act as the eyes and ears of the court and to advocate for the respondent’s best interests. Before the hearing, the guardian ad litem interviews the respondent, informs the respondent of their rights, and investigates to determine whether guardianship is appropriate. At the hearing, the guardian ad litem reports to the court and may make recommendations.
Order of the court
The court reviews all information presented at the hearing. This includes the testimony of witnesses, the report and recommendations of the guardian ad litem, and the physician’s report. After reviewing all the evidence, the court may find that no guardianship is necessary, or it may enter a limited or plenary guardianship order.
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