Guardianship Litigation

Anyone involved in guardianship litigation needs to be aware of some important distinctions. The first distinction is between guardianship and custody of minors. A minor is a person younger than 18 years. Custody disputes between the divorced or never-married parents of a minor are decided in Divorce Court or Family Court. Guardianship litigation is heard in Probate Court. Guardianship issues arise when one or both natural parents of a minor are deceased, the parents cannot be located or when the parents are unable or unwilling to care for the minor. Most guardianship issues involve children. An adult who is unable to care for himself or herself may need to have a guardian appointed by a court.

The second distinction is between guardianship of a minor’s person and guardianship of a minor’s estate. All minors without parents need a guardian of their person. A minor does not need a guardian of their estate unless they have at least $5,000 in assets. A guardian of a minor’s person is responsible for feeding, clothing, sheltering and educating the minor. A guardian of a minor’s estate is responsible for managing the minor’s financial assets until the minor turns 18.

A person who wants to become a guardian of a minor’s person or a minor’s estate must file a petition with a probate court that has jurisdiction over the minor. The court will schedule a hearing. It is the responsibility of the petitioner to notify the minor’s parents or nearest relatives of the hearing at least three days before the scheduled time of the hearing. If the minor’s parents cannot be located, the petitioner must send notice to the last known address of the parents. If the parents are deceased or their whereabouts are unknown, the petitioner for guardianship must notify the minor’s adult brothers or sisters, aunts or uncles, or grandparents. If the minor is 14 years or older, the minor must give his or her written consent for the guardianship.

A guardian must be at least 18 years old, of sound mind and body, not be a felon, and must be able to demonstrate that they can provide an active and suitable guardianship program. At the hearing, the judge will hear from all interested parties why the petitioner should or should not be made a guardian of the minor. A petitioner for the guardianship of a minor’s estate may be required to post a surety bond unless funds are deposited in a bank account in which withdrawals can be made only upon the order of the court.

A guardianship ends automatically when a minor turns 18. If a guardian wishes to resign the office of guardianship before the minor turns 18, he or she will most likely be asked to explain his or her reasons to the court. If a replacement guardian cannot be appointed, the minor will be placed in a foster home through the Illinois Department of Children and Family Services.