There are many circumstances in which a guardianship may be necessary. This may occur when the biological parents are not able to care for their child or are absent for a long period of time. Opting to become a guardian for a child is a major life decision that deserves careful consideration, but help may be available. It is important to understand the process and legalities surrounding this choice.
Adoption vs. Guardianship
There are a few key differences between adoption and guardianship. When adopting a child, the biological parents’ parental rights are permanently terminated. In a guardianship, however, the child’s biological parents maintain parental rights while the guardian is legally responsible for the care and safety of the child. The appointed guardian will have the right to make all the decisions in the life and development of the child until emancipation.
Types of Guardianship
There are three types of guardianship:
- Intended for limited time care of one year or less, however, short-term guardianships can be extended each year.
- No court filings or orders are involved.
- The guardian is chosen by the parent and the agreement is in writing and revocable at any time, without Court intervention.
- Intended for long-term, permanent care of a child.
- Remain in place until the child’s emancipation.
- Requires filing of a Petition and Order to be entered.
- Cannot be terminated or revoked except by judicial determination.
- Intended to provide back-up are in the case of incapacitation or death of the biological parent(s).
- A guardian is designated in writing through a Designation of Standby Guardian form or other estate planning documentation such as a will.
- Required filing of a petition and Order to be entered.
- Does not become effective until incapacitation or death of the biological parent(s).
Process of Guardianship
An individual seeking to establish a guardianship over a minor child does not need to be related to the child. To become a guardian in Illinois, an individual must be:
- At least 18 years old
- A resident of the United States
- Submit to background checks in the form of fingerprinting and review of the Child Abuse and Neglect Tracking System
- Of sound mind
- Has not been adjudicated disabled as defined by the Probate Act
Prospective guardians cannot be legally disabled or have a felony conviction involving harm or threat of a minor. Proposed guardians convicted of other felonies are subject to a higher degree of scrutiny.
As part of a plenary or standby guardianship, the legal parent(s) must either consent to the guardianship or be adjudicated unwilling or unable to care for the child. It is highly recommended to speak with an attorney to ensure all the required information is included in the petition.
In some cases, guardianships of minor children under the care of the Illinois Department of Children and Family Services (DCFS) may be eligible for a subsidized guardianship. A guardianship subsidy is financial assistance received from DCFS when responsibility is transferred from DCFS to the new guardian.
The guardianship subsidy lasts until the child turns 18. If the minor child is still in high school at the age of 18, then the payments continue until graduation or on the child’s 19th birthday. There may be certain conditions that can extend the subsidy payments until the age of 21. It is important to consult an attorney to determine eligibility for subsidy payments or to see if the minor child is eligible for an extension.
For questions about guardianship, contact Kogut & Wilson attorneys.
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