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GUARDIANSHIP OF MINORS |
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What is a guardian of a minor? |
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Why would a grandparent need a guardianship for a minor? |
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Who can serve as a minor's guardian? |
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Can the minor's living parents consent to the guardianship? |
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What if the minor's parents do not consent to the guardianship? |
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What is required to start a guardianship proceeding? |
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Who must be notified about the guardianship proceedings? |
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Once a guardianship order is entered, what happens next? |
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When and how does guardianship of a minor end? |
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What do attorneys typically charge to obtain guardianships? |
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Besides attorney fees, what costs are involved with obtaining a guardianship order for a minor? |
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Should a person seeking guardianship go through the process without legal counsel? |
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| Q: |
What is a guardian of a minor? |
| A: |
A guardian is a representative of a person under age 18. |
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| Q: |
Why would a grandparent need a guardianship for a minor? |
| A: |
If the grandparent is caring for the child, a guardianship is highly desirable or even required for medical or insurance reasons (or both). |
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| Q: |
Who can serve as a minor's guardian? |
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Anyone 18 years or older who is a U.S. resident, is not of unsound mind, is not disabled, and has not been convicted of a felony. Also, the court cannot appoint as a minor's guardian anyone whom the court determines has caused or substantially contributed to the minor becoming neglected or abused, unless two years have elapsed since the last proven incident of abuse or neglect and the court determines the guardian appointment is in the minor's best interests. |
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| Q: |
Can the minor's living parents consent to the guardianship? |
| A: |
Yes. A minor's parents may designate in writing a person qualified to act as guardian. The designation must be witnessed by at least two credible witnesses over age 18, neither of whom is the person designated as the guardian. |
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| Q: |
What if the minor's parents do not consent to the guardianship? |
| A: |
If a minor has a living, adoptive, 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 decisions regarding the minor, then the court may not be able to appoint a guardian. A minor's living parents, if they are competent to transact their own business and they are fit persons, are entitled to custody of their minor children. |
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| Q: |
What is required to start a guardianship proceeding? |
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To begin a guardianship proceeding, a petition for appointment of guardian must be filed with the Circuit Clerk. The petition must state: the minor's name, birth date, and residence; the names and addresses of the minor's nearest relatives; the name and address of the person having custody of the minor; the approximate value of the minor's estate; the amount of the minor's anticipated gross annual income; the name address, age, and occupation of the proposed guardian; facts concerning the execution or admission of any written designations of guardian; and facts concerning any court actions concerning the minor or his parents. Before undertaking duties as guardian, the proposed guardian must also file an oath or affirmation stating that he will faithfully discharge the duties as the minor's guardian. |
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| Q: |
Who must be notified about the guardianship proceedings? |
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After the petition seeking guardianship is filed, the petitioner must notify the minor's relatives who are named in the petition (and the minor, if age 14 or older) at least three days before the hearing to appoint a guardian. The court can excuse the notice requirement "for good cause shown." Our firm's experience is that if all relatives named in the petition file an appearance, waiver of notice, and consent to the guardianship appointment before the hearing, the court usually finds good cause to excuse the three-day notice requirement. |
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| Q: |
Once a guardianship order is entered, what happens next? |
| A: |
The court will issue "letters of office" formalizing the guardianship appointment. The guardian shall then have "the custody, nurture and tuition and shall provide education" of the minor. |
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| Q: |
When and how does guardianship of a minor end? |
| A: |
When the minor reaches age 18, when the minor or guardian die, or when the letters of office are revoked. |
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| Q: |
What do attorneys typically charge to obtain guardianships? |
| A: |
Some attorneys may charge a flat fee for a guardianship. Many, however, charge their customary hourly rates. |
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| Q: |
Besides attorney fees, what costs are involved with obtaining a guardianship order for a minor? |
| A: |
The fee to file the guardianship petition with the McHenry County Circuit Clerk is $58.00. If all of the relatives named in the guardianship petition do not voluntarily appear and consent to the guardianship, then there may be costs associated with serving those relatives. |
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| Q: |
Should a person seeking guardianship go through the process without legal counsel? |
| A: |
While people are always free to represent themselves in court, it is not recommended. |
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