Naming a Guardian for Minor Children in Illinois

What you need

• A written designation of a guardian for each child, or one for all of your children. It can sit inside your will or stand alone.
• The name of your first choice and a backup. Section 11-5 allows you to designate a successor guardian.
• Two witnesses who are at least 18. Neither may be the person you are naming.
• Your children's full names and dates of birth, if the designation is a separate paper.
• A will that repeats the choice. If you sign and witness the designation the same way as a will, it carries prima facie validity.

What the Probate Act says about the designation

Section 11-5(a-1) of the Probate Act lets a parent whose parental rights have not been ended name a person to be guardian of the person, the estate, or both, of an unmarried minor or a child likely to be born. The paper can be any writing. The two witnesses must be at least 18 and neither can be the person named as guardian. The designation may be proved by any competent evidence, and if it is signed and attested like a will, it has prima facie validity.

The designation does not affect the rights of the other parent in the child. That sentence matters. A living, willing, and able parent keeps the first claim on raising the child, and your choice of guardian is for the situation where nobody with parental rights can step in.

What the judge still decides

Naming someone is not the same as appointing them. Under section 11-5(a), the court appoints a guardian of the person, the estate, or both, as it finds to be in the interest of the child. Your nomination shows the judge what you wanted, but the judge makes the final call.

The court also checks that the person qualifies. Section 11-3 requires the proposed guardian to be capable of providing an active and suitable program of guardianship and to be at least 18, a resident of the United States, not of unsound mind, and not an adjudged person with a disability. A felony conviction counts against the person unless the court finds the appointment serves the child. A felony involving harm or threat to a child bars the appointment. One person can be guardian of the person and another guardian of the estate, which lets you pick a caregiver and a separate money manager.

Standby and short-term guardians

Illinois offers two tools besides a guardian named in a will. A standby guardian is named under section 11-5.3, using a designation with the same two witness rule. Signing it does not appoint the person. A petition must be filed in and approved by the court. If a court appoints a standby guardian ahead of time and a guardian is later needed, section 11-5(b-1) says the court shall appoint the standby guardian unless good cause shows it would no longer serve the child.

A short-term guardian under section 11-5.4 is named in writing without court approval. The paper must be dated, identify the parent, the child, and the person appointed, and be signed in front of two credible witnesses who are at least 18. The person appointed signs as well. The appointment takes effect when signed unless it says otherwise, and lasts 365 days unless it sets a different end. This is useful for a parent facing surgery, deployment, or a long trip.

When the court has no say at all

The court lacks jurisdiction over a guardianship petition for a minor if the child has a living parent whose whereabouts are known and who is willing and able to make day to day decisions. There are exceptions, including when the parent consents, fails to object after notice, or gave up physical custody. The law presumes a parent is willing and able, and that presumption can be overcome by a preponderance of the evidence. In a family where one parent has died, the surviving parent usually carries on, so the document is mainly for a loss of both parents or a surviving parent who cannot act.

What the older child gets to say

Section 11-5(c) says a minor who is 14 or older may nominate his or her own guardian, subject to the court's approval. If the court does not approve the nominee, or the child does not nominate anyone after notice, the court may appoint a guardian without a nomination. Having your written choice on file gives the judge your voice alongside the teenager's.

Keeping the choice current

Life moves. A relative you named may move away, divorce, or lose the ability to serve. Review the designation whenever a child is born, a marriage ends, or the named guardian's situation changes. For the wider plan around new children, see estate planning for new parents.

Reviewed by Jeff McCarthy, Attorney, Inspired Law Group, 136 E 9th St, Lockport, IL 60441.