HB4988 94TH GENERAL ASSEMBLY

LRB094 16878 AJO 52157 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
HB4988

Introduced 1/20/2006, by Rep. Carolyn H. Krause

SYNOPSIS AS INTRODUCED:

755 ILCS 5/11a-24 new
755 ILCS 5/11a-25 new
755 ILCS 5/11a-26 new
755 ILCS 5/11a-27 new
755 ILCS 5/11a-28 new
755 ILCS 5/23-1.1 new

Amends the Probate Act of 1975. In the Article relating to guardians for disabled adults, provides for the resignation, removal for cause, and emergency removal of such guardians. Specifies procedures and grounds for removal. In the Article on resignation and removal of representatives, provides that the new provisions control with respect to guardians of disabled adults.

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 Probate Act of 1975 is amended by adding Sections 11a-24, 11a-25, 11a-26, 11a-27, 11a-28, and 23-1.1 as follows:

(755 ILCS 5/11a-24 new)

Sec. 11a-24. Resignation of guardian. Upon petition of a guardian, the court may permit the guardian to resign. The petition may be heard without notice or after giving notice to such persons and in such manner as the court directs. If the petitioner is permitted to resign the court shall revoke his or her letters.

(755 ILCS 5/11a-25 new)

Sec. 11a-25. Emergency pre-removal powers of court. Any person having personal knowledge of the circumstances of an emergency involving the life or health of a disabled adult ward may bring those circumstances to the court's attention, either by sworn petition or by sworn oral testimony and with or without notice to the guardian. Based upon that petition or testimony, the court, upon determining that the ward's life or health is in immediate danger and regardless of whether removal proceedings have been initiated, may enter an order providing for, but not necessarily limited to, immediate suspension of the powers of the ward's guardian. The court may further order a citation under Section 11a-28 to issue and immediately appoint a guardian ad litem to investigate the allegations. A guardian ad litem so appointed is invested with the powers of an emergency temporary guardian.

If, prior to the hearing, notice was not given to the guardian subject to removal, such notice as the court deems appropriate shall be given to the guardian. The citation referred to in Section 11a-28 may be served with this notice.

(755 ILCS 5/11a-26 new)

Sec. 11a-26. "Person interested in a disabled adult" defined. For the purposes of bringing a petition for removal of a guardian under Section 11a-28, "person interested in a disabled adult" means one who has or represents a financial interest, property right, or fiduciary status at the time of reference that may be affected by the action, power, or proceeding involved, including without limitation an heir, legatee, creditor, person entitled to a spouse's or child's award, or guardian.

(755 ILCS 5/11a-27 new)

Sec. 11a-27. Removal. On petition of any person interested in a disabled adult or on the court's own motion, the court may remove the guardian of a disabled adult if:

(1) the guardian is acting under letters secured by false pretenses;

(2) the guardian is adjudged a person subject to involuntary admission under the Mental Health and Developmental Disabilities Code or is adjudged a disabled person;

(3) the guardian is convicted of a felony;

(4) the guardian fails to oversee the living conditions and care of the ward so that the health or safety of the ward is adversely affected by the conditions;

(5) the guardian fails to supply food and water or to maintain the personal hygiene of the ward when the guardian lives with the ward;

(6) the guardian wastes or mismanages any assets of the ward's estate for the guardian's personal or financial gain or for the personal or financial benefit of any third party;

(7) the guardian conducts himself or herself in such a manner as to abuse the ward physically, sexually, emotionally, or psychologically;

(8) the guardian conducts himself or herself in such a manner as to endanger any co-guardian or the surety on the guardian's bond;

(9) the guardian fails to give sufficient bond or security, counter security, or a new bond after being ordered by the court to do so;

(10) the guardian fails to file an inventory or accounting after being ordered by the court to do so;

(11) the guardian conceals himself or herself so that process cannot be served upon the guardian or notice cannot be given to the guardian;

(12) the guardian becomes incapable of or unsuitable for the discharge of the guardian's duties;

(13) the guardian fails to follow any direct order of the court after being ordered by the court to do so;

(14) the guardian of the person or plenary guardian becomes a non-resident of this State, or any guardian becomes a non-resident of the United States; or

(15) there is other good cause.

(755 ILCS 5/11a-28 new)

Sec. 11a-28. Procedure on removal.

(a) Except as provided in Section 11a-25, before removing a guardian for any of the causes set forth in Section 11a-27, the court shall order a citation to issue directing the guardian to show cause why he or she should not be removed for the cause stated in the citation. The citation must be served not less than 10 days before the return day designated in the citation and must be served and returned in the manner provided for summons in civil cases. The address recorded by the guardian with the clerk of the court shall be considered the place where citations, notices, or other process may be served upon him or her.

(b) If (i) the petitioner or his or her attorney files in the office of the clerk of the court an affidavit stating that the guardian resides or has gone out of this State, is concealed within this State, or on due inquiry cannot be found so that the citation cannot be served upon him or her, and stating the last known post office address of the guardian, or (ii) the citation is issued on the court's own motion and is not served on the guardian, the clerk shall prepare a notice stating the name of the ward, the number of the case, the name of the person to whom the notice is given, the alleged cause of removal, and the time and place of hearing and shall direct the guardian to appear and show cause why he or she should not be removed. Not less than 15 days before the return day designated in the notice, the clerk of the court shall send by registered mail one copy of the notice to the guardian at his or her last known post office address as stated in the affidavit if one is filed, one copy of the notice to the guardian at his or her last known post office address as shown by the last document filed in the court in which he or she stated his or her post office address, and one copy of the notice to his or her attorney of record.

(c) The guardian whose removal is sought may file a pleading to the petition or charges for removal on or before the return day designated in the citation or notice or within such further time as the court permits. If upon hearing the court finds that the guardian should be removed for any cause listed in Section 11a-27, the court may remove the guardian and revoke the letters of the guardian, unless his or her letters have been previously revoked under the court's emergency powers under Section 11a-25.

(d) The court may assess the costs of the proceeding against a guardian who is removed for any cause listed in Section 11a-27.

(755 ILCS 5/23-1.1 new)

Sec. 23-1.1. Resignation and removal of a guardian of a disabled adult. The provisions of Sections 11a-24, 11a-25, 11a-26, 11a-27, and 11a-28, relating to the resignation and removal of a guardian of a disabled adult, supersede the provisions of this Article with respect to such guardians.