Guardianship of a Minor: A Few Basics

Question 1: Where can I make my wishes known regarding my choice of guardian for my minor children?

Answer 1: The typical place to designate a guardian is in a Will. However, it's important to stress that the statute allowing designation of a guardian (755 ILCS 5/11-5) says it can be done in "any writing, including a will." In other words, it's perfectly acceptable to designate initial and successor guardians in some other document. That being said, the guardianship designation should adhere to some execution formalities -- it "must be witnessed by 2 or more credible witnesses at least 18 years of age, neither of whom is the person designated as the guardian."

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Question 2: Who may act as a guardian of a minor in Illinois?

Answer 2: A person who the court finds is capable of an active and suitable program of guardianship for the minor(s) and who:

1. is at least 18 years old;

2. is a U.S. resident;

3. is not of unsound mind; and

4. is not himself or herself a disabled person (as defined in the Illinois Probate Act).

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Question 3: Are there different types of guardians?

Answer 3: Yes -- there's a guardian of the person and a guardian of the estate. These roles can be filled by the same people or by different people. Under the statute, the two types of guardians are distinguished as follows:

"The guardian of the person shall have the custody, nurture and tuition and shall provide education of the ward and of his children...."

"The guardian... of the ward's estate shall have the care, management and investment of the estate, shall manage the estate frugally and shall apply the income and principal of the estate so far as necessary for the comfort and suitable support and education of the ward [and the ward's dependents], or for any other purpose which the court deems to be for the best interests of the ward...."

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Question 4: I don't like my minor child's other parent, and I would prefer that he or she not be allowed to act as my minor child's guardian if I die. Can the other parent be stopped from acting as guardian?

Answer 4: Probably not. With respect to guardianship of the person, 755 ILCS 5/11-7 makes it clear that "[i]f one parent is dead and the surviving parent is competent to transact his own business and is a fit person, he is... entitled [to the custody of the person of the minor and the direction of his education]."

Another provision of the Illinois Probate Act states that the Court lacks jurisdiction to even deal with a petition for the appointment of a guardian if "the minor has a living parent, adoptive parent or adjudicated parent, whose parental rights have not been terminated, whose whereabouts are known, and who is willing and able to make and carry out day‑to‑day child care decisions concerning the minor...."

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Question 5: Does my minor child get a say on the question of his or her guardian?

Answer 5: If the minor child is 14 years old or older, the minor child may nominate individuals to act as guardian of the person and the estate. Such nominations are, of course, subject to court approval.