SB3611 104TH GENERAL ASSEMBLY

LRB104 18247 JRC 31686 b

104TH GENERAL ASSEMBLY
State of Illinois
2025 and 2026
SB3611

Introduced 2/5/2026, by Sen. Michael W. Halpin

SYNOPSIS AS INTRODUCED:

755 ILCS 45/2-10	from Ch. 110 1/2, par. 802-10
755 ILCS 5/11a-8	from Ch. 110 1/2, par. 11a-8

Amends the Illinois Power of Attorney Act. Provides that a power of attorney not otherwise invalidated or revoked is suspended on the appointment of the Office of State Guardian or public guardian as a temporary, limited, or plenary guardian of the principal. Provides that after the appointment the court may revoke a power of attorney only if the named agent or successor agent under the power of attorney received notice of a petition for guardianship of the principal in accordance with the Probate Act of 1975, and that the agent failed to assert authority as agent before appointment of the Office of State Guardian or public guardian. Provides that if an agent or successor agent under a power of attorney does not receive notice of the petition for guardianship of the principal or an individual does not know that the individual was named as an agent or successor agent under a power of attorney for the principal, that agent, successor agent, or individual may petition the court presiding over the guardianship to lift the suspension of the agency upon a showing by clear and convincing evidence that it is in the principal's best interests to reinstate the agency so that the agent, successor agent, or individual may act in accordance with the terms of the agency. Provides that notice of a petition to lift the suspension of the agency and a copy of the petition shall be given to the guardian, the person with a disability, to those persons whose names and addresses are listed in the petition for guardianship under the Probate Act of 1975, and any guardian ad litem not less than 14 days before the hearing.

A BILL FOR

AN ACT concerning civil law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Illinois Power of Attorney Act is amended by changing Section 2-10 as follows:

(755 ILCS 45/2-10) (from Ch. 110 1/2, par. 802-10)

Sec. 2-10. Agency-court relationship.

(a) Upon petition by any interested person, notice to the agent, principal, and interested persons as the court directs and a finding by the court that the principal lacks either the capacity to control or the capacity to revoke the agency, the court may construe a power of attorney, review the agent's conduct, and grant appropriate relief including compensatory damages.

(b) If the court finds that the agent is not acting for the benefit of the principal in accordance with the terms of the agency or that the agent's action or inaction, including restricting or not allowing an interested person to have reasonable visitation with the principal, has caused or threatens substantial harm to the principal's person or property in a manner not authorized or intended by the principal, the court may order a guardian of the principal's person or estate to exercise any powers of the principal under the agency, including the power to revoke the agency, or may enter such other orders without appointment of a guardian as the court deems necessary to provide for the best interests of the principal.

(c) If the court finds that the agency requires interpretation, the court may construe the agency and instruct the agent, but the court may not amend the agency.

(d) If the court finds that the agent has not acted for the benefit of the principal in accordance with the terms of the agency and the Illinois Power of Attorney Act, or that the agent's action caused or threatened substantial harm to the principal's person or property in a manner not authorized or intended by the principal, then the agent shall not be authorized to pay or be reimbursed from the estate of the principal the attorneys' fees and costs of the agent in defending a proceeding brought pursuant to this Section.

(e) Upon a finding that the agent's action has caused substantial harm to the principal's person or property, the court may assess against the agent reasonable costs and attorney's fees to a prevailing party who is a provider agency as defined in Section 2 of the Adult Protective Services Act, a representative of the Office of the State Long Term Care Ombudsman, the State Guardian, a public guardian, or a governmental agency having regulatory authority to protect the welfare of the principal.

(f) As used in this Section, the term "interested person" includes (1) the principal or the agent; (2) a guardian of the person, guardian of the estate, or other fiduciary charged with management of the principal's property; (3) the principal's spouse, parent, or descendant; (4) a person who would be a presumptive heir-at-law of the principal; (5) a person named as a beneficiary to receive any property, benefit, or contractual right upon the principal's death, or as a beneficiary of a trust created by or for the principal; (6) a provider agency as defined in Section 2 of the Adult Protective Services Act, a representative of the Office of the State Long Term Care Ombudsman, the State Guardian, a public guardian, or a governmental agency having regulatory authority to protect the welfare of the principal; and (7) the principal's caregiver or another person who demonstrates sufficient interest in the principal's welfare.

(g) Absent court order directing a guardian to exercise powers of the principal under the agency, a guardian will have no power, duty or liability with respect to any property subject to the agency or any personal or health care matters covered by the agency. If an agent seeks guardianship of the principal pursuant to the Probate Act of 1975, the petition for guardianship must delineate the specific powers to be granted to the guardian that are not already included in the power of attorney. The petition for temporary, limited, or plenary guardianship of the principal under the Probate Act of 1975 may include a prayer for relief to suspend a power of attorney or to revoke a power of attorney in accordance with subsection (b).

(g-1) Any powers of attorney not otherwise invalidated or revoked in accordance with this Section are suspended upon the appointment of the Office of State Guardian or public guardian as a temporary, limited, or plenary guardian of the principal. Upon such an appointment, the court may revoke a power of attorney only if the named agent or successor agent under the power of attorney received notice of a petition for guardianship of the principal in accordance with Section 11a-4 or Section 11a-8 of the Probate Act of 1975, and that agent failed to assert authority as agent before appointment of the Office of State Guardian or public guardian. If an agent or successor agent under a power of attorney does not receive notice of the petition for guardianship of the principal or an individual does not know about being named as an agent or successor agent under a power of attorney for the principal, that agent, successor agent, or individual may petition the court presiding over the guardianship of the principal to lift the suspension of the agency upon a showing by clear and convincing evidence that it is in the principal's best interests to reinstate the agency so that the agent, successor agent, or individual may act in accordance with the terms of the agency. Notice of a petition to lift the suspension of the agency and a copy of the petition shall be given to the guardian, the person with a disability, and to those persons whose names and addresses are listed in the petition for guardianship under Section 11a-8 of the Probate Act of 1975, and any guardian ad litem not less than 14 days before the hearing.

(h) Proceedings under this Section shall be commenced in the county where the guardian was appointed or, if no Illinois guardian is acting, then in the county where the agent or principal resides or where the principal owns real property.

(i) This Section shall not be construed to limit any other remedies available.

(Source: P.A. 102-72, eff. 1-1-22; 103-55, eff. 1-1-24.)

Section 10. The Probate Act of 1975 is amended by changing Section 11a-8 as follows:

(755 ILCS 5/11a-8) (from Ch. 110 1/2, par. 11a-8)

Sec. 11a-8. Petition. The petition for adjudication of disability and for the appointment of a guardian of the estate or the person or both of an alleged person with a disability must state, if known or reasonably ascertainable: (a) the relationship and interest of the petitioner to the respondent; (b) the name, date of birth, and place of residence of the respondent; (c) the reasons for the guardianship; (d) the name and post office address of the respondent's guardian, if any, (d-1) the name and address or of the respondent's agent or agents appointed under the Illinois Power of Attorney Act, if any, and, if no agent is identified or address provided, that diligent inquiry was made to learn this information and the specific steps taken; (e) the name and post office addresses of the nearest relatives of the respondent in the following order: (1) the spouse and adult children, parents and adult brothers and sisters, if any; if none, (2) nearest adult kindred known to the petitioner; (f) the name and address of the person with whom or the facility in which the respondent is residing; (g) the approximate value of the personal and real estate; (h) the amount of the anticipated annual gross income and other receipts; (i) the name, post office address and in case of an individual, the age, relationship to the respondent and occupation of the proposed guardian. In addition, if the petition seeks the appointment of a previously appointed standby guardian as guardian of the person with a disability, the petition must also state: (j) the facts concerning the standby guardian's previous appointment and (k) the date of death of the guardian of the person with a disability or the facts concerning the consent of the guardian of the person with a disability to the appointment of the standby guardian as guardian, or the willingness and ability of the guardian of the person with a disability to make and carry out day-to-day care decisions concerning the person with a disability. A petition for adjudication of disability and the appointment of a guardian of the estate or the person or both of an alleged person with a disability may not be dismissed or withdrawn without leave of the court. A petitioner who seeks to revoke or construe a power of attorney for the alleged person with a disability, or review the agent's conduct, shall do so in conformity with the Illinois Power of Attorney Act, and as set forth in subsection (c) of Section 11a-17 and subsection (e) of Section 11a-18 of this Act.

(Source: P.A. 102-72, eff. 1-1-22.)