If a parent dies when their children are young, a guardian steps in to care for them. However, if the parent did not leave the correct documents naming a guardian for their children, a court will make the decision about who raises them.
An experienced estate planning attorney can help parents secure their children’s futures with legal documents including a will and, if there are assets to inherit, a trust structured to distribute assets that provide for the child’s needs. It’s a gap in planning that many parents overlook.
How Guardianships are Established
If a parent dies without leaving a will that specifies who should care for their children, a state court will name a guardian. The guardian has decision-making power over the child’s life, activities, and funds. In Illinois, the probate court has jurisdiction over guardianship matters.
Judges carefully choose a guardian who will act in the child’s best interests, usually naming a family member or family friend as the guardian of any children. Without a parent’s documented guidance, the guardian chosen may not share the parents’ values, parenting philosophy, or warm relationship.
The Types of Guardianship Possible
Illinois recognizes two forms of guardianship that parents should understand. One person can be named to both positions, or there may be two separate guardians:
- Personal guardianship. This form is physical custody, someone who will provide for a child’s daily physical care and needs.
- Guardian of the estate. Any money or property left in a child’s name by their parent is an estate. An estate guardian watches over the child’s funds, including making arrangements for health insurance, housing, and other necessities.
Foster Care Pitfalls
A lack of planning can result in a child entering the state’s foster care (also known as child welfare) system. This can happen if the child’s guardian resigns and there is no one else to appoint as a new guardian, or if no willing family member steps forward to provide care. Under foster care, the state acts as the child’s guardian.
Naming a Guardian in Your Will
By naming a legal guardian in their will, a parent can ensure that the child is raised in an appropriate way. However, the parent’s choice for a guardian is not automatic. The court gives preference to the person the parent has named, but may appoint someone else if they do not meet legal requirements or if the parent’s choice of a guardian is otherwise unsuitable.
Illinois law requires that all custody cases be decided in the best interests of the child. Everything that affects a child’s physical, moral, intellectual, and spiritual wellbeing is considered by the court when choosing a guardian.
Standby and Short-Term Guardian Options
When a temporary guardianship is necessary due to a parent’s serious illness, the parent can designate a standby guardian (with the person’s consent). This guardian can exercise legal decision making on the child’s behalf for up to 60 days, after which the court must be petitioned to set up a more formal arrangement. The arrangement must be documented in writing.
Parents Should Act Before It’s Too Late
It’s advisable for parents to work with an attorney as the surest way to protect their child’s future. Illinois does not require an attorney to appoint a guardian, but the complexity of the process makes professional guidance strongly advisable. An attorney will ensure the guardian document meets Illinois statutory requirements and help parents understand joint or standby guardianship, draft letters of intent that state the parent’s values and wishes and prevent potential legal challenges from family members.
An experienced attorney from Legacy & Life Law can help parents create a protective net for their children, including not leaving their care to the uncertainty of a court hearing. Call for a consultation today.