Illinois Standby and Short-Term Guardianships

Warning: Standby and Short-Term Guardianships are not available in many states. Consult an attorney before attempting to utilize these provisions in your area.

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Standby Guardianship

I. What Is It?

A standby guardian is a court-ordered appointment that becomes active upon a parent's incapacity or death. This means that the standby guardian has no responsibilities while the minor's parent is still able to care for the minor. The standby guardian may then petition the court to be appointed a "regular" guardian when the parent dies or becomes unable to care for the minor. The standby has immediate power to act without going to court, but only for 60 days. Within 60 days, the standby must file a petition to be confirmed by the court and appointed guardian.

• This procedure is not available when the minor has another living parent who is willing and able to care for the minor and who does not consent to the appointment. Neither is it available when the minor already has a court-appointed guardian

II. Why Have It?

Unlike a mere nomination by will, this procedure provides for a court-appointed guardian, but removes the requirement that the guardian immediately assume custody, care, and control of the minor. It allows a parent to testify and participate in the court adjudication of the factual issues involved in the appointment of the guardian. This can be accomplished while the parent is still healthy and energetic enough to participate.

III. How To Get It?

Step 1:

• Designation
  A statutory form is provided but need not be followed. The designation may be made in any writing, including a will. One must have two credible witnesses at least 18 years old, neither of whom is the designee. If it is attested in the same manner as a will, it will have prima facie validity. Note: Between designation and appointment, the standby guardian has no court-imposed duties and might not even be aware of the designation.

Step 2:

• Appointment as Standby Guardian
  Anyone may petition the court for the standby guardian's appointment. See section 11-8.1 for requirements of petition. The standby guardian must file an oath and may be required to file a bond (if also a guardian of the estate) when his or her duties are activated. Notice requirements are the same as for the appointment of a guardian. The court then conducts the usual "best interests" hearing. Note: The standby guardian has no duties until he or she receives knowledge of activation.

Step 3:

• Activation
  The standby guardian is activated into a full guardian when the standby guardian receives knowledge of the death or consent of the parent, or of the parent's inability to make and carry out day-to-day child care decisions. This inability may be communicated by the parent's own admission or by written certification of the parent's physician. The standby guardian, using the order appointing standby guardian, may act for 60 days without court supervision. Within those 60 days, the standby guardian must file (or cause to be filed) a petition for the appointment of a guardian of a minor. Note: The standby guardian may not act as guardian of the minor's estate without court supervision; this is why the bond must be filed only upon appointment as guardian.

Step 4:

• Appointment as Guardian
  Section 11-5(b-1) provides that the standby guardian will be appointed guardian unless it is no longer in the best interest of the minor. This gives the standby guardian some assurance that he or she will survive a contest at this stage. Note: Section 11-13.2 deals with termination or limitation of the standby guardian's authority; anyone may petition the court for the termination or limitation of the standby's authority in order to prevent abuse during the 60 day period.

Short-term Guardianship

I. What Is It?

A short-term guardianship is a private (no court involvement), 60-day appointment of a guardian for a minor. The short-term guardian has power to act as guardian of the minor's person only, except that the short-term guardian may apply for and receive government entitlements for the minor. When a parent (or parents) executes a proper document (see below), a short-term guardian's authority lasts for a period up to 60 days.

• However, a parent may not appoint a short-term guardian if the minor has another living parent who is willing and able to make and carry out day-to-day child care decisions, unless the non-appointing parent consents to the appointment in writing. Moreover, the appointment of a short-term guardian does not affect the rights of the other parent in the minor.

II. Why Have It?

This procedure gives parents a mechanism to convey to another adult, the necessary authority to care for minors during periods of parental absence or incapacity. The short-term guardian would, for example, have authority to consent to medical treatment for the child.

III. How To Get It?

Step 1:
A parent appoints a short-term guardian in a dated writing which identifies the appointing parent, the minor, and the person appointed to be short-term guardian.

Step 2:
The writing must be signed by, or at the direction of, the appointing parent in the presence of two credible witnesses who are at least 18 years old. Neither witness can be the appointee.

Step 3:
If there is another living parent (note: this procedure is not available if there is another parent who does not consent), that parent must also sign the form. However, this non-appointing parental signature is not required if the whereabouts of the other parent are unknown, if the other parent is unwilling or unable to make and carry out day-to-day child care decisions, or if the child's parents were never married and no court has issued an order establishing parentage.

Step 4:
The person appointed as the short-term guardian must also sign the document, ensuring the short-term guardian's acceptance of the duties. The short-term guardian need not sign at the same time as the appointing parent.

Step 5:
The appointment of the short-term guardian becomes effective immediately upon the date the written document is executed unless the document provides for a later specified effective date or event (i.e.. upon the parent's admission to a hospital). Similarly, the appointment remains effective for a period of 60 days unless the written instrument provides for termination upon an earlier specified date or event (i.e. upon the parent's release from the hospital).

Note: Although a parent can execute more than one short-term guardianship appointment, only one written document may be in force at any given time. For example, if a parent signs a document that provides for an appointment to become effective upon her admission to the hospital, the appointment is "in force." But it will not be "effective" or "in effect" until her admission to a hospital.

Note: A short-term guardian appointment may be amended or revoked by the appointing parent at any time and in any manner communicated to the short-term guardian or to any other person.

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For further information contact:
Julie E. Justicz
Executive Director
AIDS Legal Council of Chicago
312-427-8990