Selecting a guardian is an important part of creating a will
Pop singer Michael Jackson’s sudden death has caused many parents to consider what would happen if they died without specifying in their will who would have custody of their children. It’s such a tough issue that many parents delay or forego the decision altogether.
But ideally, the parents will have made that decision before the child is born, lawyers say. Without that legal directive, a judge will make the decision.
Typically, parents choose another couple to be guardians. But unforeseen events can occur that may cause the parents to reconsider their choice. Over the years, people do move in and out of a person’s life. A couple appointed a guardian may divorce or move across state lines. Therefore, lawyers usually recommend that parents review their decision at least once a year.
It’s also a good idea to inform the designated guardian beforehand if there will be a change, as uncomfortable as that conversation may be. The good news is that most children have at least one parent living when they turn 18, so the decision will probably never be put into effect.
If you fail to designate a guardian in your will, the court will make that decision. Those they appoint must agree to perform certain duties, and frequently that includes overseeing the entire estate. The guardian’s responsibilities to manage the minor’s property are closely supervised. Prior approval of the court for some actions is required.
Illinois law requires that the legal guardian assist the ward (or minor) in the development of maximum self-reliance and independence. To that end, the guardian must make several decisions affecting the minor, including where he or she will live.
The guardian is responsible for the support, care, comfort, health, maintenance and placement, if appropriate, in an educational system, with funds for those services coming from the minor’s income and assets. The guardian is also responsible for seeing that the minor gets medical, dental, grooming and other professional services needed.
The law does not require the guardian to spend his or her own money on behalf of the minor. In fact, if the guardian incurs debts greater than the minor’s estate can afford, the guardian may be held personally responsible for those amounts. If assets are unavailable, the guardian may be able to receive money through government assistance programs.
With the court’s approval, a guardian may also be eligible to receive payment for serving in that role. The court may also require the guardian to submit regular reports. The guardian will have legal responsibility to care for the child until he or she turns 18 or is removed by the court.
A person may apply for guardianship. The court requires several items to be presented including the minor’s birth certificate, a valid picture I.D. of the guardian, and a death certificate of the parents – or if the parents are still alive, their notarized consent. A court filing fee is also required.
Note: This information was prepared as a public service by the Illinois State Bar Association and is a joint project with the Illinois Press Association. Its purpose is to inform citizens of their legal rights and obligations.