Children Laws

Illinois Guardianship Law

Guide to Illinois Guardianship

In the state of Illinois, when a person is incapable of making their own legal decisions, a legal guardian may be appointed for them. Typically, IL guardianship cases pertain to children, the elderly, and the severely disabled. This guide will teach you about Illinois guardianship arrangements for different types of people, as well as explaining who qualifies to be a guardian under current law.

Guardianship of Children

Usually, a child's legal guardian is his or her parent. In these situations, IL guardianship laws do not apply. If a child needs a non-parental guardian to be appointed, the courts will step in. Illinois guardianship will be given on the basis of the child's best interest. A child may need IL guardianship for many reasons: for instance, a parent may be unavailable due to death, severe illness or disability, or incarceration.

When a child needs Illinois guardianship for protection, the court will give notice to the family of the child. This allows the family to pick a suitable person to as the child's legal guardian under IL guardianship laws. If a parent is able to express a choice of legal guardian for their child, Illinois guardianship law requires courts to take this preference into account. It is fairly rare for IL guardianship to not be awarded to a parent's preferred guardian—typically, this happens if for some reason the proposed guardian is unable or unwilling to serve.

Guardianship of the Disabled

The other main category of people who qualify for guardians under Illinois guardianship laws are the disabled. Some disabled people in IL guardianship proceedings have been disabled their whole lives, while others are recently disabled. Typically, Illinois guardianship is used as a last ditch measure when a family member can no longer care for himself or herself and is in potential danger without a guardian.

Two types of IL guardianship are available to disabled people who need a guardian. If a person is not capable of making basic decisions about his or her personal care, someone may be appointed as a “guardian of the person,” and will be able to make all decisions about the disabled individual's care. In other cases—especially with older people suffering from dementia—the person may be able to make some personal care choices but cannot make reasonable decisions about money or property. In these cases, a “guardian of the estate” may be given financial decisionmaking responsibilities.

Who May Be a Guardian?

Any legal U.S. resident who is 18 or older and is of sound mind can be a legal guardian, provided they have not been convicted of a serious crime. Not all guardians are individuals. Both public and private not-for-profit organizations are allowed to petition for guardianship of an individual. In cases where no suitable guardian can be found for a disabled individual, the Office of the State Guardian will take guardianship responsibilities. Because guardianship can be expensive and difficult, it is advisable to talk to an attorney before deciding to pursue guardian status.

Emancipation Overview

What is Emancipation and What Does It Involve?

Emancipation of minors refers to a set of laws that allows a minor to conduct business on their own behalf or for their own benefit that is regarded as outside the influence of their guardian or parent. An emancipated minor, although under the age of majority, will assume most adult responsibilities. An emancipated minor is therefore deemed, by the state, to be responsible for their own care—the individual is no longer under the care of their parents or guardians. The emancipation of minors enables the minor to have full contractual capacity to conclude contract with regard to their business endeavor.

In the United States, children are regarded as minors and are thus placed under the control of their parents or legal guardians, until they reach the age of majority. When the individual reaches the age of majority (in most cases 18 years of age) they are regarded as adult beings.

The precise laws for obtaining emancipation will vary from state to state. In most states in the U.S., the minor is required to file petition with the family court in the underlying jurisdiction. The petition signifies the formal request for formal emancipation; the petition will cite reasons as to why it is in their best interest to become emancipated.

Emancipations are very difficult to obtain because of the attached subjectivity of the “best interest” clause. In most cases, the state’s department of child services will be contacted and the child will be placed in foster care. In other cases, such as those where the minor is dissatisfied with their parents or guardian’s rules, the attempt to secure emancipation will be denied.

In addition to the laws surrounding the obtainment of emancipation, specialized provisions will dictate what the minor is legally allowed to do under state law. For example, an emancipated minor—depending on state law– may not get married without parental consent, quit school, drink or purchase alcohol or vote.

If a minor does achieve emancipation the individual can partake in the following efforts and activities:

• The emancipated minor can enter into a legally-binding contract, including real estate purchases or rentals

• The emancipated minor can enroll in the school of his or her choice

• The emancipated minor can sue or be sued in the court of law

• The emancipated minor can apply for work and keep income generated from work

• The emancipated minor can make healthcare decisions, including those relating to birth control and abortions

How is Emancipation Obtained?

Emancipation is obtained in the following three ways: marriage, military or obtaining permission from a court.

In most states, a minor will automatically secure emancipation once they get married. However, in order to get married, the minor must comply with state marriage requirements, which will indefinitely set a minimum age for marriage and require the minor’s parents to be present during the ceremony.

Minors can become emancipated by enlisting in the United States military, however, since military policy requires enlistees to have at least a high school diploma or equivalent, emancipation is rare through enlistment.

A few states will allow a minor to emancipate via a court order. Typically, the minor must be at least 16 years of age to receive emancipation through the court system. A court may grant emancipation if it believe it is doing so to serve the individual’s best interest—this determination is based on the following factors;

• Can the minor be financially self-sufficient through employment

• Is the minor living apart from his or her parents or has the minor made alternative living arrangements

• Is the minor mature enough to make decisions and function as an adult

• Is the minor attending school or has he/she received a high school diploma

Maine Guardianship Law

What is Guardianship Law?

A guardianship, in the United States, is a legal relationship formed when an, individual or institution named in a will or assigned by a court, takes care of minor children for an incompetent or missing adult. Also referred to as a conservatorship, guardianship law is observed to offer a child in need of parental advisory with a suitable adult.

To become a guardian a close friend or another family member of the child will petition a local court for guardianship. Guardianship law in the United States declares that the court does not have to honor a request for guardianship when an individual is named in a will as a guardian of a child in case of the death of the parent. That being said, guardians are typically granted when petition adheres to a locality’s guardianship law. The guardianship of a minor—according to guardianship law—remains under court supervision until the child reaches the age of majority (18).

Guardianship law states that guardians are not allowed to benefit at the expense of those they care for; in many cases guardians are required to offer periodic accountings to the presiding court. Guardianship laws concerning accounting requirements vary between jurisdictions; local court rules must be consulted to uncover your particular requirements.

Guardianship of a child removes the parents’ right to render decisions concerning their child’s life. That being said, guardianship does not permanently terminating the biological parents’ rights. This simply means that although the guardian maintains custody and is therefore responsible for raising the child, the youth’s biological parents are still regarded as the child’s legal parents.

The presiding court—according to guardianship law—may order guardians to let the biological parents contact or visit the child. Moreover, the presiding court may place limits or conditions on visitations, including mandatory supervision. The frequency of parental visitation is typically up to the guardian or the court to decide. Guardianship law states that in certain cases the biological parents may regain custody of their child in the future. The transfer of custody back to the biological parents will be affirmed if the court—in adherence to guardianship law—determines the guardianship to be no longer in the child’s best interests.

Although local laws vary, the majority of courts in the United States require certain parties to be served with notice of guardianship hearings. These notices must be legally served upon the person with an attached sworn statement of the individual making the service later returned to the court. In certain cases, courts may waive said requirements.

In Maine, the highest court has held that probate courts possess the authority to grant co-guardianships to existing parents and other persons, thus enabling gay and lesbian parents to form legal relationships between their children the children’s parents.

Maine Guardianship for Adults:

Maine guardianship for adults refers to the care of adults who are in need of decision-making help. The information in this section applies to adults with any sort of diminished capacity, including persons with developmental impediments, individuals with physical problems, frail elders and persons with mental health or addictions. For detailed information on Maine guardianship for adults www.maine.gov/dhhs/adults.shtml

The Maine Department of Health and Human Services is the government agency responsible for administering Maine guardianship.

Maine Guardianship Law for Minors:

If you are worried about the health and safety of your child you must weigh the pros and cons of Maine guardianship. According to Maine guardianship law, the adoptive or biological parents of a child are the natural guardians of their child. As a natural guardian, these parents are responsible for the youth’s care, custody, services, earnings and control until the child reaches the age of 18.

As stated above, Maine guardianships are legal guardians who assume the day-to-day decision making and control of a child from their natural guardians under formal court order. A ME guardianship, in general, assumes the care and upbringing of the child in question; ME guardianships render all parental decisions for the child.

In general, a ME guardianship can:

• Request and accept medical treatment on the youth’s behalf

• Enroll the youth in public school in the ME guardian’s community, and

• Provide for the youth’s general welfare.

ME legal guardianship does not include financial responsibility; this responsibility remains with the child’s biological parents. As a practical matter; however, ME guardians often provide financial support—the delivery of financial aid on part of the guardian is dependent on the biological parents’ situation.

Who Decides to Appoint ME Guardianships?

Probate courts will appoint ME guardianships for minor children where appropriate. Each county in the state of Maine has a Probate Court.

To secure a ME guardianship in accordance with ME guardianship laws please follow these steps:

1. Secure the Required ME Guardianship Forms and fill them out

a. You will need to secure and complete several forms to secure a ME guardianship in alignment with ME guardianship laws. The individual filing for ME guardianships is referred to as the petitioner; when filing you may propose yourself as the guardian or another person whom you deem qualified.

b. A required form according to ME guardianship laws is the Child Custody Affidavit. This form tells the court about the child’s living situation for the past five years and labels other parties that may have an interest in your filing for ME guardianship

c. If you claim that the child is living in an intolerable situation, you must file a sworn affidavit describing the facts of his/her situation. This form is known as the Affidavit of Petitioner for Appointment of Guardian of Minor Alleging Intolerable Living Situations

d. Some states—in adherence to ME guardianship laws—require you to file an Acceptance of Guardianship form with your petition for ME guardianship

e. If the child is, has been or will be receiving public assistance you will be required—according to Maine guardianship laws—to file a statement concerning public assistance form. The bulk of ME guardianship courts require everyone to file this form.

2. File the Forms for ME Guardianships:

a. You may file the forms for ME guardianships either by mailing them or hand delivering them to your probate court. Regardless of the delivery service, you must keep a copy for yourself. Make other copies if you will be filing your own notice

3. Notify Other Parties:

a. You, as required by ME guardianship laws, are required to notify the following people that are planning to secure a ME guardianship:

i. The minor child if the youth is 14 years or older and has yet to be consented

ii. The parents of the youth

iii. The individual who has cared for the youth for the 60 days prior to the filing

iv. Any other individual as directed by the Judge of Probate

v. Securing notice means that the parties must secure copies of the court papers; notices can be done via the sheriff’s service or through certified mail via restricted delivery. In either case, the notice will provide you with proof that the parties secure this notice. Parties—according to Maine guardianship laws—may waive the notice requirement.

4. Probate Court Hearing:

a. The next step is dependent on the party’s ability to agree on the ME guardianship.

b. If the parties agree, the probate process typically goes more quickly as the court hearing is less formal. With an agreement; however, the Probate Court Judge must still approve the ME guardianship.

c. If the ME guardianship is contested, the ME court will appoint an ME guardian for the child.

d. At the probate hearing, the court will require a burden of proof; the prospective Maine guardian must convince the Judge the he or she should appoint you as the guardian. In essence, you must prove under Maine guardianship laws that the birth parents or present legal guardians are unable or unwilling to care for the child and that living with you is in the best interest of the youth

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Children Laws

Revolutionary Shifts in Child Welfare: A Wake-Up Call for Society

Unveiling the Urgent Need for Robust Child Protection Policies

Illinois Guardianship Law

Emancipation Overview

What is Emancipation and What Does It Involve?

Maine Guardianship Law

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