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Guardianship is unfamiliar territory for many. At SBK Law Group, we offer a multitude of experience educating and representing guardians, wards, respondents, and family members in guardianship. Families often face questions about the need for guardianship during times of crisis or transition. For example, when an adult becomes incapacitated, a child loses a parent, or a loved one cannot make sound decisions due to age or illness.
In Illinois, guardianship provides a legal mechanism to protect the well-being, finances, and personal affairs of those unable to care for themselves. In some states, this process is also called conservatorship. While it can be a complex process, understanding when and how guardianship becomes necessary can help families act decisively and compassionately.
Guardianship is a legal arrangement established by the court that gives one person (the guardian) the authority to make decisions on behalf of another (the ward). In Illinois, the laws governing guardianship are primarily found in the Illinois Probate Act of 1975 (755 ILCS 5/). Articles XI and XIa outline the procedures, rights, and limitations involved in establishing guardianship for minors and adults.
There are two primary types of guardianship:
Guardianship for adults may be established when a person is “disabled” due to mental deterioration, physical incapacity, or developmental disability that prevents one from being capable of making decisions for their person or managing their finances. This situation frequently arises in cases involving developmental disability, Alzheimer’s disease, traumatic brain injury, or severe mental illness.
Before appointing a guardian, the court requires clear and convincing evidence that the adult cannot make or communicate responsible decisions regarding personal care or financial matters. In many cases, the court may appoint a limited guardian if the individual retains partial capacity. This ensures the least restrictive form of intervention while still providing necessary protection.
The court’s primary goal is to protect the ward’s best interests while preserving independence as much as possible. Therefore, alternatives such as powers of attorney or supported decision making agreements should always be considered before guardianship is pursued.
For minors, guardianship is typically necessary when a child’s parents are deceased, incapacitated, or otherwise unable to provide care. The court will appoint a guardian who can make decisions regarding education, medical care, and day-to-day needs. When determining guardianship of a minor, the court prioritizes the best interests of the child. For children age fourteen and older, the court also considers the child’s nomination for guardian, if any.
Filing for guardianship begins with submitting a petition to the circuit court in the county where the ward resides. When multiple states are at play, the Uniform Child-Custody Jurisdiction and Enforcement Act governs the proper place to file the guardianship petition as to a minor child. The Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act governs the proper state to file in multi-state adult guardianship matters.
Along with the petition for guardianship, the petitioner must provide evidence of incapacity (for adults) in the form of a report of a physician (also known as a physician’s report). Many local courts require these reports to be completed on a county-specific form. In the case of minors, the petitioner must state under oath the statutory basis for the petition and be prepared to provide testimony or documentation of parental unavailability. The petitioner is also responsible for providing legal notices to all people entitled to notice.
Most often, the court will appoint a guardian ad litem to investigate the circumstances, interview the petitioner and respondent, and make formal recommendations regarding the petition before the court.
The petition will be set for a hearing. A hearing may be a matter of minutes (as is the case in many uncontested proceedings) or it may last several days. Once the court reviews all the evidence, it either grants or denies the petition for guardianship. If the petition is granted, the court issues an order appointing a guardian and letters of office. Guardians have an ongoing duty to the ward and to the court. They must file annual, bi-annual, or tri-annual accountings and/or reports. These include detailing the ward’s condition and the management of finances, ensuring accountability and ongoing oversight.
Guardianship is not always necessary. In some cases, families can avoid court intervention by using less restrictive alternatives such as:
These tools can provide greater flexibility and privacy, while still protecting vulnerable individuals. Conveniently, the Illinois legislature even has standardized forms for some of these options. That said, standard forms are no substitute for guidance from an attorney. While some individuals’ skill sets and needs are perfectly well-matched to complete and execute an Illinois short-form power of attorney document, many are not. All too often, we see fatal defects or misunderstandings in the meaning, content, or execution of legal forms such as these when done without attorney assistance.
Guardianship of the person gives authority over an individual’s personal care and health decisions, while guardianship of the estate involves managing finances and property. Often both types are necessary. However, where the ward’s only ‘asset’ is their right to receive social security benefits, a guardianship of the estate is not necessarily needed.
A plenary guardianship or a limited guardianship of an adult disabled person continues until the court determines it is no longer needed. Typically, an adult guardianship ends when the ward has regained capacity, the ward passes away, or the guardian is replaced. Minor guardianships end when the child turns eighteen or upon earlier termination by the court.
Yes. An alleged disabled person has the right to contest a petition for guardianship, the right to demand an attorney, and the right to demand a hearing on the evidence. Interested parties, such as relatives, can also contest guardianship appointments. This may take the form of disputing whether a guardian is needed or cross-petitioning, disputing who the court should appoint as the guardian.
Yes. Guardians must file annual reports detailing the ward’s condition, living situation, and financial management. The court reviews these reports to ensure the guardian is acting responsibly and in accordance with Illinois law.
In many cases, yes. By establishing powers of attorney, trusts, and healthcare directives, individuals can ensure that trusted agents manage their affairs without court intervention. This often reduces stress and legal costs for families.
The ideal guardian should be someone responsible, trustworthy, and capable of making difficult decisions. Serving as a guardian is a commitment of your time and your person. The needs of each ward and each ward’s estate will vary. A prospective guardian should seek an understanding of the needs of a particular ward and his or her estate to ensure that they have appropriate availability to serve the needs of the ward.
In some instances, this may include plans to engage professional assistance, such as case management services, a financial advisor, an accountant, or a professional fiduciary. Courts prioritize individuals who demonstrate a clear understanding of the ward’s needs, the skills to meet those needs (either personally or via a plan to engage assistance). and have a personal relationship with them.
At SBK Law Group, we help families understand when guardianship becomes necessary and when it is not. We counsel our clients on what guardianship may and may not achieve. We evaluate the suitability of less restrictive alternatives to guardianship. Once a path forward is determined, we then guide our client through the process with compassion, pragmatism, and in compliance with Illinois law.
Contact the Downers Grove and Joliet guardianship attorneys at SBK Law Group today at 630-427-4407 to schedule your consultation. Our offices serve families throughout DuPage County, Will County, and Kane County, providing trusted counsel when it matters most.
