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Can a guardian initiate divorce on behalf of their ward?

To care for a vulnerable person is an honorable pursuit. In Illinois, a guardian is an individual or institution appointed by the court to manage the affairs of their ward, who is a mentally or physically disabled adult.

The state’s courts started recognizing a guardian’s decision-making authority after the Karbin v. Karbin case. The ruling showed how a guardian can petition for divorce on behalf of their ward if they have clear and convincing proof that it is in the ward’s best interests.

Determining the kind of guardianship applicable to a ward’s limitations can help move the divorce process forward.

Types of guardianship

Someone may qualify as a guardian if they are at least 18, of sound mind, without a criminal history and generally acceptable per the judge. There are two basic types of guardianship:

  • Limited: When a guardian can decide only on some of a ward’s specific concerns, as explicitly stated in the court order
  • Plenary: When a ward’s incapacitated condition gives a guardian the power to exercise complete control to make personal and property decisions

Courts often allow plenary guardians to file for divorce or continue making progress for what started before their appointment. With supporting evidence, they must establish that their actions align with a ward’s wishes or how a ward would have acted if they were functioning well.

Protections for one’s safety

While it is noble to look after someone who cannot do so on their own, it is also critical for guardians to look out for themselves. Working with their legal counsel can protect their rights and interests during potentially complicated disputes with their ward.

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