Guardianship – Minor
This information explains the procedure to obtain guardianship of a minor. The proper forms for obtaining guardianship must be filled out and the filing fee paid before you go to court. If you need legal advice regarding a guardianship, you should consult an attorney.
When does the minor need a guardian?
A minor needs a guardian of his/her person in the following circumstances:
- When the minor has no living parents or; the parents cannot be found or; the parents are unable or unwilling to care for the minor.
- When the minor’s parents want him/her to live with a relative or other adult.
You should check with the local school district to find out what the requirements of the school district are pertaining to guardianship. A minor needs a guardian of his/her estate when he/she has, or is about to receive, any money or property with a value of at least $5,000 (such as from insurance, inheritance or from the settlement of a personal injury case). A guardianship of the estate is not needed if the only asset of the minor is the right to collect social security benefits.
Who can be a guardian?
To be a guardian of a minor’s person you must be:
- at least 18 years of age
- a United States resident
- of sound mind and under no legal disability
- not a convicted felon
- capable of providing and active and suitable program of guardianship
How can you become a guardian?
Petition:
Complete a Petition for Appointment of Guardianship of a Minor form and file this petition with the Circuit Clerk’s Civil Division in Room 136. The Petition for Appointment of Guardianship of a Minor form can be printed from the list of forms below. When you file the petition with the Circuit Clerk, a filing fee will be required and your case will be scheduled for a hearing. The filing fee may be waived in cases of financial hardship. Information on Civil Fee Waivers
Notice:
You must give a written notice of the date, time and place of the hearing by mail or in person to the parents or nearest living relatives of the minor (and any person who already has legal custody or guardianship of the minor) at least three (3) days before the hearing. Notice may be sent by using a Notice of Motion form, or may be substituted by having the parents sign an Appearance, Waiver and Notice form. These forms are available from the clerk or from the list of forms below.
The “nearest relatives” of an unmarried minor are the parents and adult brothers and sisters of the minor. If there are no living parents or adult siblings, the next nearest adult relatives are considered grandparents and/or aunts and uncles. At the hearing you must do one of the following:
- Present proof that you gave notice to the parents or nearest relatives, or;
- Present a written consent letter signed by the parents or nearest relatives stating they agree that you should become the minor’s guardian. Be sure that the letter contains the minor’s name and your name. The letter also needs to be notarized (signed by parents or nearest relatives in the presence of a Notary Public). There are Notary Publics available in the Circuit Clerk’s office.
If the parents cannot be located, you must show the last known address of the missing parent(s) and send notice to that parent at the last known address.
If the minor is 14 years or older, he/she must sign the nomination page that is included with the petition.
Hearing:
Bring the minor to the hearing with you. When the Judge calls the minor’s name, approach the bench.
After the hearing, if the Court has agreed to appoint you as the minor’s guardian, go to the Circuit Clerk’s Civil customer service in Room 136. The Clerk will give you Letters of Office that you may take to school or to anyone who needs to know you have authority to act for the minor.
Bonds:
If you are named to be the guardian of the estate of the minor, not just the person, you must file a Bond approved by the Court. Unless excused by the Court, every Bond must be guaranteed by at least two individual sureties or by a surety company. If two individuals act as sureties, the amount of the bond must be double the value of the minor’s personal estate. The individual sureties must sign a notarized list of their assets, which must be attached to the bond.
If a corporate surety is used, the amount of the bond is 1 ½ times the value of the minor’s personal estate. A surety company will charge the estate an annual premium like a premium on an insurance policy. Surety on the bond may be excused if the money in the estate is deposited in:
- a trust with a trust company or;
- a government insured bank account in a bank, savings & loan or credit union, subject to withdrawal only by court order or;
- United States obligations deposited for safekeeping in an approved depository, subject to withdrawal only by court order.
If the money may be withdrawn only by court order, a Certificate of Depository Receipt showing that no withdrawals are allowed without court order must be filed with the Circuit Clerk. This form is available from the list of forms below.
What are the Guardian's Annual Responsibilities?
Annual Report:
An Annual Report must be filed every year. The first Annual Report is due within 14 months after the date the Letters of Office were issued. In the following years, the Annual Report is due on the same day of the year as the first Annual Report was fileld.
Annual Accounting:
If you are named to be the guardian of the estate of the minor, not just the person, you must file an Accounting every year. The first Annual Accounting is due within 14 months after the date the Letters of Office were issued. In the following years, the Annual Accounting is due on the same day of the year as the first Annual Accounting was filed.
The Annual Accounting should list all the money received by the guardian and all money spent by the guardian on behalf of the minor, and the assets remaining on hand at the end of the accounting period. The guardian should be prepared to produce receipts for all expenditures made on behalf of the minor. A guardian of the estate may appear in court to get the Accounting approved, or may electronically file or mail the Annual Accounting to the McHenry County Circuit Clerk, Attention Probate, 2200 N. Seminary Avenue, Woodstock, IL 60098.
The 22nd Circuit provides a Guardian Accounting Program to guide guardians through the process of completing and filing an Annual Accounting.
Keep detailed records of all financial transactions in the estate accounts. If a guardian cannot explain to the Court what he or she has done with the money of a minor, or if the Court finds the guardianship funds have been mismanaged or misused, the guardian may be held liable for the money and have to pay it back. The money and property of the minor should be kept separate and titled in the name of the Guardian of the Estate.
How does the guardian withdraw funds?
If the minor’s money is deposited in a government insured account, with withdrawal allowed only by court order, you must file a Petition for Withdrawal of Funds any time you need to withdraw money to spend for the minor’s needs. This form is available from the Circuit Clerk (Room 136) or from the list below.
Settlement of personal injury claims for the minor
A guardian must obtain court approval to settle a personal injury claim of a minor by filing a petition with the court. A report from the attending physician stating the nature and extent of the injury must be filed with the petition. If the minor is represented by an attorney, no court appearance is required.
What happens when i die, resign, or can no longer be guardian?
A petition to appoint a new guardian may be filed in the existing probate case without payment of a new filing fee. Notice or consent is required in the same manner as when the original petition for guardianship was filed. If a guardian of the person of a minor resigns and there is no parent or any other qualified adult able or willing to be appointed as the new guardian, the minor may have to be placed in foster care under the supervision of the Illinois Department of Children & Family Services (D.C.F.S.)
What happens when the minor turns 18 years old?
When the minor turn 18 years old, he/she must fill out the Order of Majority and present it with a copy of their birth certificate to the Circuit Clerk (Room 136).
When and where can I find forms to obtain guardianship in McHenry county?
You are advised to obtain the necessary forms from the Circuit Clerk in advance of your court date. You should not wait until your court date to file your petition and pay your filing fee. 48-hour notice is required to schedule a case for court. The necessary forms can be printed from the forms listed below.
- Michael J. Sullivan Judicial Center
- Circuit Clerk Civil Division – Room 136
- 2200 N. Seminary Avenue
- Woodstock, IL 60098
- (815) 334-4310
The Circuit Clerk’s office is open Monday through Friday, from 8:00 a.m. until 4:30 p.m.
When and where do I go to court to obtain a guardianship in McHenry County?
Guardianship cases are heard at 9:30 a.m., Monday through Friday. You must have your filing fees paid and the Petition for Guardianship filed at least 2 business days before your court date.
- Michael J. Sullivan Judicial Center
- 2200 N. Seminary Avenue
- Woodstock, IL 60098