New Bill Amends Guardianship Laws
In Illinois, the Probate Act regulates the guardianship of minors and disabled adults. The statute creates three types of guardianship under the Act: guardian of the estate, guardian of the person and guardian of both the estate and the person. The type of guardianship sought will largely dictate what is required in the process of petitioning for guardianship.
Establishing Guardianship of a Minor
The amendments to the Probate Act create a rebuttable presumption in favor of short-term guardians who are initially appointed by a minor’s parent or guardian. The petitioner seeking guardianship then has the burden of proving by a preponderance of the evidence that remaining with the appointed short-term guardian is not in the child’s best interest. While this presumption cannot be rebutted, the appointment of a short-term guardian does not represent the Court’s consent for a Court appointment of a guardian.
In the event that a short-term guardian appointed by the minor’s parent later petitions for Court-ordered guardianship, the petition must include the facts of the short-term guardian’s appointment, including a copy of the short-term guardianship agreement and the following:
- Date of the appointment;
- Circumstances surrounding the appointment;
- Date the short-term guardian appointment ends; and
- Reasons why a Court-ordered guardian is necessary for the minor.
Finally, the new laws allow guardians to remove minors from Illinois with the Court’s approval. However, this will only be granted if the removal is in the best interests of the child.
Appointing a Guardian for a Disabled Adult
The new laws make the process of gaining guardianship over a disabled adult much more difficult. For instance, the Court is now required to appoint an independent expert to examine the adult. When the examination is concluded, the expert must file a report that includes the following information:
- A description of the adult’s disability and an assessment of how it impacts his or her ability to function independently;
- An analysis of the adult’s mental and physical condition;
- An opinion as to whether guardianship is needed;
- A recommendation as to suitable living arrangements and treatment; and
- The name, business address, business telephone number and signatures of all examiners.
Prior to the passage of the new amendments, the examiner’s identifying information was not required. The changes ensure that only qualified physicians will be consulted.
Finally, the law now explicitly states that the paramount concern in appointing a guardian is “the best interest and well-being of the disabled person.”
If you are going through the process of establishing guardianship over a minor or disabled adult, please contact skilled Palatine family law attorney Nicholas W. Richardson to schedule a free consultation.