Chicagoland Guardianship Lawyers
Guardianship refers to obtaining legal authority to make decisions for another person, usually a child. Many counties in Illinois require the appointment of a guardian ad litem, a private attorney, or some other trained professional independently advising the court concerning the apparent need for guardianship, and you will want to make sure you are working with an Illinois and Indiana guardianship lawyer if you need help securing a guardianship in Illinois or Indiana.
Guardianship involves a person other than a child or disabled person’s parent having legal custody and control over the child or disabled person, and the guardian has the right to make all decisions concerning the child or disabled person while being legally responsible for the child or disabled person. When a child or disabled person’s parent has legal custody and control of the child or disabled person, it is called custody, but when a person other than the parent has legal custody and control of the child or disabled person(also known as the ward), it is called guardianship.
Guardianships in Illinois
Guardianship is the legal term referring to the legal right to make decisions for someone else, and the Illinois Probate Act gives courts the flexibility to tailor guardianship to meet the needs and capabilities of disabled persons. Depending on the decision-making capacity of a disabled person, the court may appoint the following types of Illinois guardianship.
- Limited Guardian — A limited guardian is appointed when a child or disabled person can make some financial or personal decisions – but not all. A court needs to specify the decisions a limited guardian will be able to make. There will be more personalization of limited guardianship agreements to a child or disabled adult’s specific needs because the ward will retain as much control over their own affairs as is practicable. Limited guardianship can apply to a person’s financial decisions, which is guardianship of the estate, or personal decisions such as healthcare, which will be guardianship of the person. The most common kinds of limited guardianship include medical, financial, education, and residential decisions. A limited guardian must present annual reports to the courts and faces greater restrictions in the decisions they can make. The process of appointing a limited guardian can be more difficult because a physician has to be present for an in-depth analysis of which decisions a person can reasonably make on their own, and then the court will decide which of the rights the child or disabled adult will retain.
- Plenary Guardian — The phrase plenary guardianship applies when a person’s mental, physical, and adaptive limitations necessitate a guardian with the power to make all important decisions regarding the child or disabled person’s personal care and finances. Plenary guardianship can apply to a person, an estate, or both. Plenary guardianship is otherwise known as full guardianship because when it is the opinion of a child or disabled person’s parents, primary physician, or another medical expert that the child or disabled person will be completely unable to make health care or financial decisions, then plenary guardianship may be in the ward’s best interest. Plenary guardianship is a combination of estate guardianship and person guardianship, and this guardianship may be permanent or for a short-term duration.
- Temporary Guardian — Temporary guardianship in Illinois can last no longer than 60 days and is a means to ensure that a child or alleged disabled person receives immediate protection. The Probate Act allows courts to appoint temporary guardians only as short-term remedies when clear harm or emergency exists. Illinois also had short-term guardians for cases in which the guardian will be responsible for the child or disabled person for one year or less. A temporary or short-term guardianship can also end when a certain event happens, such as a parent returning from active military duty. The parent or guardian can end a short-term guardianship at any time, even before the end date that was on the written agreement.
- Guardianship of the Person — Applies to a person who lacks sufficient understanding or the capacity to make or communicate responsible decisions regarding their care. The guardian of the person will make decisions regarding the support, care, comfort, health, education, maintenance, and professional services such as educational, vocational, habilitation, treatment, and medical services.
- Guardianship of the Estate — Applies to a person who cannot manage their estate or financial affairs. A guardian of the estate will make decisions about the management of a ward’s property and finances.
- Successor Guardianship — This applies in cases of death, disability, or resignation of initially appointed guardians when guardianship will still be necessary.
- Testamentary Guardianship — Applies to parents of a person with disabilities and designates by will a person who assumes the guardianship appointment upon the death of a parent. A court still has to appoint the chosen person before they can serve as the guardian. A court will consider a chosen person but is not bound by a testamentary designation, as it can appoint another person when the proposed guardian is inappropriate.
Guardianships in Indiana
In guardianship cases in Indiana, a court will appoint a person or entity as a fiduciary to protect and manage the person and/or property of an incapacitated person or a minor. A probate court typically has exclusive original jurisdiction over the guardian and protective proceedings. The different types of guardianships in Indiana include:
- Limited Guardianship — Limited guardianship allows a probate court to appoint someone as a guardian over only the portion of a person’s life where the ward is both incompetent and has a need. This means that there might be a limited guardian who manages medical purposes only, placement purposes only, or the limited purpose of approving behavior plans and/or certain medications.
- Guardian Ad Litem — Indiana allows judges to appoint people to look out for a child’s welfare when court cases involve children. The person is known as a guardian ad litem (GAL) or court-appointed special advocate (CASA volunteer). The GAL or CASA volunteer may act for the child in the courtroom, deal with social services, and help in cases of family crisis. A GAL or CASA volunteer will have to investigate the child’s situation, monitor for the judge, speak for the child, report to the court, and find necessary services.
- Temporary Guardianship — Under Indiana state law, a temporary guardian can be appointed for a period not to exceed 90 days when there was no appointment of a guardian for a protected person; an emergency exists; the welfare of the protected person requires immediate action; and no other person appears to have authority to act in the circumstances. When there needs to be an appointment of a guardian for a period in excess of 90 days, then there will need to be an appointment of a permanent guardian.
- De Facto Guardianship — The Indiana Code defines a de facto custodian as a person who has been the primary caregiver for and financial supporter of a child who has resided with the person for at least six months when the child is less than three years of age or one year when the child is at least three years of age. To meet the initial requirements to be deemed a de facto custodian, a person must provide primary care for a child for at least one year, but the one-year period does not have to be an uninterrupted calendar year.
Call Us Today to Schedule a Free Consultation with an Illinois and Indiana Guardianship Lawyer
When you are dealing with any kind of guardianship issue in Illinois or Indiana, you are going to want to retain legal counsel. An experienced Illinois and Indiana business lawyer can help ensure that you are able to accomplish the guardianship agreement that best serves all of your needs.
Spagnolo & Hoeksema, LLC handles guardianship cases all over the greater Chicagoland area. Feel free to call us or contact us online so you can set up a free consultation and we will be able to take a better look at your situation and advise you on the best steps to take moving forward.