Law Offices Of Robert J. Varak   773.991.3309

Frequently Asked Questions about Guardianship of Minor children

Q. What is a guardian for minor children?

A. A guardian is a person vested with the power and charged with the duty of taking care of the person and managing the property of a child under the age of 18. In Illinois, this power is vested only through a court order.

Q. If the court appoints the guardian, why do I need to choose one?

​A. There are two reasons that every estate plan for a family with minor children should include a provision appointing a guardian. First and foremost, even states like Illinois which require court appointment will give “due regard” to the wishes of the parents. Practically speaking, this is the most important factor they will consider. Secondly, a family may move to a state like Michigan, which places the power to appoint a guardian directly in the hands of the parents. In these states a court will only overturn such an appointment in extreme circumstances where it is found to be in the best interest of the child. 

Q. Can I choose to appoint co-guardians?

A. You can, although it is an altogether more complex arrangement. You should only consider married couples, and you should also take into account what will happen if the couple is not available due to divorce or the passing of one the appointees. In general, it is preferable to name an individual as a guardian, with at least one alternate. Obviously, the courts will not force someone to act as a guardian, and the alternate provides additional flexibility if your choice is unwilling or unavailable. 

Q. Can I give one person custody of the children and another control over the children’s money?

A. The law provides for this sort of division by requiring a guardian of the person and a guardian of the estate for each child. The guardian of the person is entrusted with day-to-day custody of the child. The guardian of the estate is granted power over the child’s property. Typically these powers are combined and given to one person, but there are circumstances where splitting the guardianship may be beneficial. Doing so should only be done after careful consideration of what the practical effect that such a split will have on the administration of the guardianship. It can also have substantial ramifications for inter-family relationships, and should be done only if absolutely necessary. 

Q. My spouse and I are having difficulty settling on a guardian. What factors should we consider as we weigh our options?

​A. The process of choosing the people to whom you will entrust your own children can often be a difficult and even acrimonious one. Writing down the choices and evaluating them with the following considerations in mind can help facilitate an objective discussion. • Age of the potential guardians• Number and ages of any natural children of the potential guardians• Location of the candidates• Socio-economic situation • Educational opportunities• Religious preference 

Q. Can I somehow insure that other family members will have an opportunity to see the children?

A. You may provide for visitation by other family members as you feel is appropriate. But care should be taken to keep these requests as general as possible in order to make them easier for the family to carry out. 

Q. I have specific instructions that I want carried out about religious instruction, extracurricular requirements or educational directives. How can I make sure that these are followed?

​A. You can always provide written instructions to your appointees regarding specific instructions.