Illinois

I. Designation of Standby Guardian
II. Agreement of the Non-Custodial Parent
III. Role of the Standby Guardian
IV. Court Process
Resources


I. Designation of Standby Guardian

Designation of a standby guardian by a parent (including adoptive or "adjudicated" parents whose parental rights have not been terminated) can be in any written form. If it is attested, for example as part of a will witnessed and signed by two people over the age of 18, it is presumed to be valid. A simple form is included in the statute which the parent may optionally use. [Probate 5/11-5.3(e)] The form does not contain any language limiting commencement of the standby guardianship to specific events or conditions.

The designation accompanies a petition to be filed in court. The petition must provide more of the information a court must have to make a best interests decision: for example, the names and addresses of family members, details about the other parent's consent, and any legal matters like adoption petitions or parentage disputes that could affect the guardianship.

If the parent completes the designation and an attorney prepares the petition and files papers, the process for the parent is quite simple.





II. Agreement of the Non-Custodial Parent

Illinois law is clear that designation by a custodial parent does not affect the rights of the non-custodial parent. If the child has another living "parent, adoptive parent or adjudicated parent, whose parental rights have not been terminated, whose whereabouts are known, and who is willing and able to make and carry out day-to-day child care decisions," that parent must be given an opportunity to assume the custodial role. In fact, there is a presumption that the non-custodial parent would be able to assume that role; the presumption can be rebutted by a preponderance of the evidence. The guardianship opportunity is offered the non-custodial parent through notice of the hearing. If he receives notice and fails to object, the guardianship can proceed. [Probate 5/11-5.3( c); 5/11-10.1]

While not explicit, the words of the statute that refer to a parent "whose whereabouts are known" would seem to leave the door open to proof of reasonable, but unsuccessful, efforts to reach him. [Probate 5/11-5.3 (c) ]





III. Role of the Standby Guardian

The standby guardian does not assume any duties until a specified event or condition occurs. The triggering events to which the statute refers are death, consent of the parent, or the inability of the parent to make day-to-day decisions. This can be proved by the parent's admission or an attending physician's written certification. [Probate 5/11-13.1(b)]

When the triggering event occurs, the standby guardian assumes all guardian duties. Note that the law does not state that the parent and guardian shall be co-decision-makers. When the parent is able, she cares for her children. When she can no longer do so, decision-making transfers to the standby guardian. Illinois law makes it easy to delineate whether the guardianship shall include the child's estate as well as the "custody, nurture and tuition" and education of the child's person. [Probate 5/11-13] Assuming "due care," any health care provider or other professional has a right to rely on the guardian's directions, and will not incur liability for doing so. The guardian who acts legally and reasonably will be protected from criminal prosecution. [Probate 5/11-13.3] An attractive part of the Illinois standby guardianship law is that it is included in a cluster of other laws that provide an array of tools to plan for the child's future. The duties of the standby guardian [Probate 5/11-13.1] can be read in the context of general guardianship duties for a child [Probate 5/11-13] and short term guardianship for emergencies. [Probate 5/11-13.2]

When the triggering event does occur, in addition to daily decision-making, the guardian has 60 days to file confirming evidence with the court, and a petition to be appointed as guardian. [Probate 5/11-13.1(b)-(c); 5/11-8] Illinois law states that the court "shall appoint the standby guardian as the guardian" unless there is a good cause not to. [Probate 5/11-5 (b-1)]

The court may limit or terminate the authority of a standby guardian. [5/11-13(e)]





IV. Court Process

Court process begins when the parent files in court a document designating a standby guardian, and a petition requesting that the person be appointed as standby guardian. The parent must give notice of the hearing to the non-custodial parent and any relatives or others referenced in the petition, and to any children 14 years or older. [Probate 5/11-10.1] The court then appoints the standby guardian if it determines that to be in the child's best interests. [Probate 5/11-5.3(b)] The standby guardian must take an oath to faithfully carry out the duties, and must file a bond once the duties commence. [Probate 5/11-5.3(d)]

The court may appoint a guardian ad litem to represent the child. [Probate 5/11-10.1(b)] The Probate Court has abundant case law to help determine what shall be in the child's best interests. In addition, factors to be considered when determining the best interests of the child are listed in the Illinois Family Code. [Family 5/602]

After the triggering event occurs the standby guardian has 60 days of temporary authority within which she has to file confirming evidence (for example, a parent's written consent to begin the guardianship, a physician's certification of debilitation or a death certificate) and a petition for establishment of a permanent guardianship. [Probate 5/11-13.1( c)]

		Illinois Compiled Statutes Annotated Chap. 755. Estates Art. 5. Probate Act of 1975 Article XI. Minors Sec. 5/11-5.3; -8; -10.1; -13.1, -13.2. Family, 5/602