Rep. Robert Martwick

Filed: 3/12/2019

 

 


 

 


 
10100HB2661ham001LRB101 10074 LNS 57261 a

1
AMENDMENT TO HOUSE BILL 2661

2    AMENDMENT NO. ______. Amend House Bill 2661 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Probate Act of 1975 is amended by changing
5Sections 11a-9 and 11a-18 as follows:
 
6    (755 ILCS 5/11a-9)  (from Ch. 110 1/2, par. 11a-9)
7    Sec. 11a-9. Report.)
8    (a) The petition for adjudication of disability and for
9appointment of a guardian should be accompanied by a report
10which contains (1) a description of the nature and type of the
11respondent's disability and an assessment of how the disability
12impacts on the ability of the respondent to make decisions or
13to function independently; (2) an analysis and results of
14evaluations of the respondent's mental and physical condition
15and, where appropriate, educational condition, adaptive
16behavior and social skills, which have been performed within 3

 

 

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1months of the date of the filing of the petition; (3) an
2opinion as to whether guardianship is needed, the type and
3scope of the guardianship needed, and the reasons therefor; (4)
4a recommendation as to the most suitable living arrangement
5and, where appropriate, treatment or habilitation plan for the
6respondent and the reasons therefor; (5) the name, business
7address, business telephone number, and signatures of all
8persons who performed the evaluations upon which the report is
9based, one of whom shall be a licensed physician or a licensed
10clinical psychologist, and a statement of the certification,
11license, or other credentials that qualify the evaluators who
12prepared the report.
13    (b) If for any reason no report accompanies the petition,
14the court shall order appropriate evaluations to be performed
15by a qualified person or persons and a report prepared and
16filed with the court at least 10 days prior to the hearing.
17    (b-5) Upon oral or written motion by the respondent or the
18guardian ad litem or upon the court's own motion, the court
19shall appoint one or more independent experts to examine the
20respondent. Upon the filing with the court of a verified
21statement of services rendered by the expert or experts, the
22court shall determine a reasonable fee for the services
23performed. If the respondent is unable to pay the fee, the
24court may enter an order upon the petitioner to pay the entire
25fee or such amount as the respondent is unable to pay. However,
26in cases where the Office of State Guardian is the petitioner,

 

 

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1consistent with Section 30 of the Guardianship and Advocacy
2Act, no expert services fees shall be assessed against the
3Office of the State Guardian.
4    (c) Unless the court otherwise directs, any report prepared
5pursuant to this Section shall not be made part of the public
6record of the proceedings but shall be available to the court
7or an appellate court in which the proceedings are subject to
8review, to the respondent, the petitioner, the guardian, and
9their attorneys, to the respondent's guardian ad litem, and to
10such other persons as the court may direct.
11(Source: P.A. 98-1094, eff. 1-1-15.)
 
12    (755 ILCS 5/11a-18)  (from Ch. 110 1/2, par. 11a-18)
13    Sec. 11a-18. Duties of the estate guardian.
14    (a) To the extent specified in the order establishing the
15guardianship, the guardian of the estate shall have the care,
16management and investment of the estate, shall manage the
17estate frugally and shall apply the income and principal of the
18estate so far as necessary for the comfort and suitable support
19and education of the ward, his minor and adult dependent
20children, and persons related by blood or marriage who are
21dependent upon or entitled to support from him, or for any
22other purpose which the court deems to be for the best
23interests of the ward, and the court may approve the making on
24behalf of the ward of such agreements as the court determines
25to be for the ward's best interests. The guardian may make

 

 

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1disbursement of his ward's funds and estate directly to the
2ward or other distributee or in such other manner and in such
3amounts as the court directs. If the estate of a ward is
4derived in whole or in part from payments of compensation,
5adjusted compensation, pension, insurance or other similar
6benefits made directly to the estate by the Veterans
7Administration, notice of the application for leave to invest
8or expend the ward's funds or estate, together with a copy of
9the petition and proposed order, shall be given to the
10Veterans' Administration Regional Office in this State at least
117 days before the hearing on the application.
12    (a-5) The probate court, upon petition of a guardian, other
13than the guardian of a minor, and after notice to all other
14persons interested as the court directs, may authorize the
15guardian to exercise any or all powers over the estate and
16business affairs of the ward that the ward could exercise if
17present and not under disability. The court may authorize the
18taking of an action or the application of funds not required
19for the ward's current and future maintenance and support in
20any manner approved by the court as being in keeping with the
21ward's wishes so far as they can be ascertained. The court must
22consider the permanence of the ward's disabling condition and
23the natural objects of the ward's bounty. In ascertaining and
24carrying out the ward's wishes the court may consider, but
25shall not be limited to, minimization of State or federal
26income, estate, or inheritance taxes; and providing gifts to

 

 

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1charities, relatives, and friends that would be likely
2recipients of donations from the ward. The ward's wishes as
3best they can be ascertained shall be carried out, whether or
4not tax savings are involved. Actions or applications of funds
5may include, but shall not be limited to, the following:
6        (1) making gifts of income or principal, or both, of
7    the estate, either outright or in trust;
8        (2) conveying, releasing, or disclaiming his or her
9    contingent and expectant interests in property, including
10    marital property rights and any right of survivorship
11    incident to joint tenancy or tenancy by the entirety;
12        (3) releasing or disclaiming his or her powers as
13    trustee, personal representative, custodian for minors, or
14    guardian;
15        (4) exercising, releasing, or disclaiming his or her
16    powers as donee of a power of appointment;
17        (5) entering into contracts;
18        (6) creating for the benefit of the ward or others,
19    revocable or irrevocable trusts of his or her property that
20    may extend beyond his or her disability or life;
21        (7) exercising options of the ward to purchase or
22    exchange securities or other property;
23        (8) exercising the rights of the ward to elect benefit
24    or payment options, to terminate, to change beneficiaries
25    or ownership, to assign rights, to borrow, or to receive
26    cash value in return for a surrender of rights under any

 

 

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1    one or more of the following:
2            (i) life insurance policies, plans, or benefits,
3            (ii) annuity policies, plans, or benefits,
4            (iii) mutual fund and other dividend investment
5        plans,
6            (iv) retirement, profit sharing, and employee
7        welfare plans and benefits;
8        (9) exercising his or her right to claim or disclaim an
9    elective share in the estate of his or her deceased spouse
10    and to renounce any interest by testate or intestate
11    succession or by inter vivos transfer;
12        (10) changing the ward's residence or domicile; or
13        (11) modifying by means of codicil or trust amendment
14    the terms of the ward's will or any revocable trust created
15    by the ward, as the court may consider advisable in light
16    of changes in applicable tax laws.
17    The guardian in his or her petition shall briefly outline
18the action or application of funds for which he or she seeks
19approval, the results expected to be accomplished thereby, and
20the tax savings, if any, expected to accrue. The proposed
21action or application of funds may include gifts of the ward's
22personal property or real estate, but transfers of real estate
23shall be subject to the requirements of Section 20 of this Act.
24Gifts may be for the benefit of prospective legatees, devisees,
25or heirs apparent of the ward or may be made to individuals or
26charities in which the ward is believed to have an interest.

 

 

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1The guardian shall also indicate in the petition that any
2planned disposition is consistent with the intentions of the
3ward insofar as they can be ascertained, and if the ward's
4intentions cannot be ascertained, the ward will be presumed to
5favor reduction in the incidents of various forms of taxation
6and the partial distribution of his or her estate as provided
7in this subsection. The guardian shall not, however, be
8required to include as a beneficiary or fiduciary any person
9who he has reason to believe would be excluded by the ward. A
10guardian shall be required to investigate and pursue a ward's
11eligibility for governmental benefits.
12    (b) Upon the direction of the court which issued his
13letters, a guardian may perform the contracts of his ward which
14were legally subsisting at the time of the commencement of the
15ward's disability. The court may authorize the guardian to
16execute and deliver any bill of sale, deed or other instrument.
17    (c) The guardian of the estate of a ward shall appear for
18and represent the ward in all legal proceedings unless another
19person is appointed for that purpose as guardian or next
20friend. This does not impair the power of any court to appoint
21a guardian ad litem or next friend to defend the interests of
22the ward in that court, or to appoint or allow any person as
23the next friend of a ward to commence, prosecute or defend any
24proceeding in his behalf. Without impairing the power of the
25court in any respect, if the guardian of the estate of a ward
26and another person as next friend shall appear for and

 

 

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1represent the ward in a legal proceeding in which the
2compensation of the attorney or attorneys representing the
3guardian and next friend is solely determined under a
4contingent fee arrangement, the guardian of the estate of the
5ward shall not participate in or have any duty to review the
6prosecution of the action, to participate in or review the
7appropriateness of any settlement of the action, or to
8participate in or review any determination of the
9appropriateness of any fees awarded to the attorney or
10attorneys employed in the prosecution of the action.
11    (d) Adjudication of disability shall not revoke or
12otherwise terminate a trust which is revocable by the ward. A
13guardian of the estate shall have no authority to revoke a
14trust that is revocable by the ward, except that the court may
15authorize a guardian to revoke a Totten trust or similar
16deposit or withdrawable capital account in trust to the extent
17necessary to provide funds for the purposes specified in
18paragraph (a) of this Section. If the trustee of any trust for
19the benefit of the ward has discretionary power to apply income
20or principal for the ward's benefit, the trustee shall not be
21required to distribute any of the income or principal to the
22guardian of the ward's estate, but the guardian may bring an
23action on behalf of the ward to compel the trustee to exercise
24the trustee's discretion or to seek relief from an abuse of
25discretion. This paragraph shall not limit the right of a
26guardian of the estate to receive accountings from the trustee

 

 

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1on behalf of the ward.
2    (d-5) Upon a verified petition by the plenary or limited
3guardian of the estate or the request of the ward that is
4accompanied by a current physician's or a licensed clinical
5psychologist's report that states the ward possesses
6testamentary capacity, the court may enter an order authorizing
7the ward to execute a will or codicil. In so ordering, the
8court shall authorize the guardian to retain independent
9counsel for the ward with whom the ward may execute or modify a
10will or codicil.
11    (e) Absent court order pursuant to the Illinois Power of
12Attorney Act directing a guardian to exercise powers of the
13principal under an agency that survives disability, the
14guardian will have no power, duty or liability with respect to
15any property subject to the agency. This subsection (e) applies
16to all agencies, whenever and wherever executed.
17    (f) Upon petition by any interested person (including the
18standby or short-term guardian), with such notice to interested
19persons as the court directs and a finding by the court that it
20is in the best interest of the person with a disability, the
21court may terminate or limit the authority of a standby or
22short-term guardian or may enter such other orders as the court
23deems necessary to provide for the best interest of the person
24with a disability. The petition for termination or limitation
25of the authority of a standby or short-term guardian may, but
26need not, be combined with a petition to have another guardian

 

 

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1appointed for the person with a disability.
2(Source: P.A. 99-143, eff. 7-27-15; 99-302, eff. 1-1-16;
399-642, eff. 7-28-16.)
 
4    Section 99. Effective date. This Act takes effect upon
5becoming law.".