Appointing a Standby or Short-Term Guardian for a Minor Child

 Posted on March 19,2015 in Family Law

Generally, only a child’s parents or legal guardians have the authority to make decisions regarding the child’s care and well-being. To a certain extent, that authority even extends beyond the grave. Illinois law permits parents and guardians to appoint standby guardians, which allows them to decide who will care for their children if the worst happens. A standby guardian is someone who would immediately take on the care of minor children upon the passing of the parents or guardians.

You may appoint a standby guardian in your will, but the law does not require the designation to be made this way. There are other legal forms that you can use instead. However, the content requirements are the same, no matter the type of document used:

1. The document naming this guardian has to be witnessed by two competent adults (older than 18); and
2. The person appointed to be this guardian cannot be a witness.

(Keep in mind that there is a difference between personal guardians and estate guardians.)

A court must approve the standby guardian before he can assume his duties. The following measure is to file the nominating document and a petition identifying the child, parents, siblings and proposed guardian with the court. Note that the court will not allow a standby guardian to assume care if there is a parent willing and able to take care of the child. So, for example, if a custodial parent dies, he or she cannot freeze out a living non-custodial parent by designating a different guardian, unless the living parent consents.

The court will decide the standby guardianship based on the best interests of the child. If approved, the standby guardian will immediately assume responsibility for the child if the parents or guardians die or become otherwise incapacitated. This authority lasts for 365 days. Within the first 60 days, the standby guardian must file a petition seeking the appointment of a permanent guardian (which in some cases could end up being the person who served as the standby guardian).

Short-Term Guardianship

Parents or guardians may also designate short-term guardians to temporarily care for their children. Short-term guardianships are typically used in cases where the parent or guardian is hospitalized or otherwise unable to care for the child. As with a standby guardianship, a short-term guardianship lasts no longer than 365 days and will not be permitted if there is another parent willing and able to assume child care (unless that parent consents). Unlike with standby guardianship, a short-term guardian does not have to be approved by a court. The only requirement is that the appointment be made in writing and witnessed by two competent adults, neither of whom can be named the guardian.

The short-term guardian must sign the appointment form, which can either take effect immediately or on a specified date/based on a triggering event (like if the parent is hospitalized). The parent can terminate the guardianship at any time.

Our experienced Kane County family law attorneys understand the importance of preparing for situations where you might be unable to care for your children. We can help you plan ahead to ensure your children’s well-being. Contact us today for a consultation. We can assist those in the St. Charles area.