101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB2816

 

Introduced , by Rep. Terra Costa Howard

 

SYNOPSIS AS INTRODUCED:
 
755 ILCS 5/11a-10  from Ch. 110 1/2, par. 11a-10

    Amends the Adult Guardianship Article of the Probate Act of 1975. Deletes language providing that if the respondent is unable to pay the fee of the guardian ad litem or appointed counsel, or both, the court may enter an order for the petitioner to pay all such fees or such amounts as the respondent or the respondent's estate may be unable to pay. Provides instead that the allocation of guardian ad litem fees is within the discretion of the court.


LRB101 08686 LNS 53771 b

 

 

A BILL FOR

 

HB2816LRB101 08686 LNS 53771 b

1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Probate Act of 1975 is amended by changing
5Section 11a-10 as follows:
 
6    (755 ILCS 5/11a-10)  (from Ch. 110 1/2, par. 11a-10)
7    Sec. 11a-10. Procedures preliminary to hearing.
8    (a) Upon the filing of a petition pursuant to Section
911a-8, the court shall set a date and place for hearing to take
10place within 30 days. The court shall appoint a guardian ad
11litem to report to the court concerning the respondent's best
12interests consistent with the provisions of this Section,
13except that the appointment of a guardian ad litem shall not be
14required when the court determines that such appointment is not
15necessary for the protection of the respondent or a reasonably
16informed decision on the petition. If the guardian ad litem is
17not a licensed attorney, he or she shall be qualified, by
18training or experience, to work with or advocate for persons
19with developmental disabilities, the mentally ill, persons
20with physical disabilities, the elderly, or persons with a
21disability due to mental deterioration, depending on the type
22of disability that is alleged in the petition. The court may
23allow the guardian ad litem reasonable compensation. The

 

 

HB2816- 2 -LRB101 08686 LNS 53771 b

1guardian ad litem may consult with a person who by training or
2experience is qualified to work with persons with a
3developmental disability, persons with mental illness, persons
4with physical disabilities, or persons with a disability due to
5mental deterioration, depending on the type of disability that
6is alleged. The guardian ad litem shall personally observe the
7respondent prior to the hearing and shall inform him orally and
8in writing of the contents of the petition and of his rights
9under Section 11a-11. The guardian ad litem shall also attempt
10to elicit the respondent's position concerning the
11adjudication of disability, the proposed guardian, a proposed
12change in residential placement, changes in care that might
13result from the guardianship, and other areas of inquiry deemed
14appropriate by the court. Notwithstanding any provision in the
15Mental Health and Developmental Disabilities Confidentiality
16Act or any other law, a guardian ad litem shall have the right
17to inspect and copy any medical or mental health record of the
18respondent which the guardian ad litem deems necessary,
19provided that the information so disclosed shall not be
20utilized for any other purpose nor be redisclosed except in
21connection with the proceedings. At or before the hearing, the
22guardian ad litem shall file a written report detailing his or
23her observations of the respondent, the responses of the
24respondent to any of the inquiries detailed in this Section,
25the opinion of the guardian ad litem or other professionals
26with whom the guardian ad litem consulted concerning the

 

 

HB2816- 3 -LRB101 08686 LNS 53771 b

1appropriateness of guardianship, and any other material issue
2discovered by the guardian ad litem. The guardian ad litem
3shall appear at the hearing and testify as to any issues
4presented in his or her report.
5    (b) The court (1) may appoint counsel for the respondent,
6if the court finds that the interests of the respondent will be
7best served by the appointment, and (2) shall appoint counsel
8upon respondent's request or if the respondent takes a position
9adverse to that of the guardian ad litem. The respondent shall
10be permitted to obtain the appointment of counsel either at the
11hearing or by any written or oral request communicated to the
12court prior to the hearing. The summons shall inform the
13respondent of this right to obtain appointed counsel. The court
14may allow counsel for the respondent reasonable compensation.
15    (c) The allocation of guardian ad litem fees is within the
16discretion of the court. If the respondent is unable to pay the
17fee of the guardian ad litem or appointed counsel, or both, the
18court may enter an order for the petitioner to pay all such
19fees or such amounts as the respondent or the respondent's
20estate may be unable to pay. However, in cases where the Office
21of State Guardian is the petitioner, consistent with Section 30
22of the Guardianship and Advocacy Act, where the public guardian
23is the petitioner, consistent with Section 13-5 of this Act,
24where an adult protective services agency is the petitioner,
25pursuant to Section 9 of the Adult Protective Services Act, or
26where the Department of Children and Family Services is the

 

 

HB2816- 4 -LRB101 08686 LNS 53771 b

1petitioner under subparagraph (d) of subsection (1) of Section
22-27 of the Juvenile Court Act of 1987, no guardian ad litem or
3legal fees shall be assessed against the Office of State
4Guardian, the public guardian, the adult protective services
5agency, or the Department of Children and Family Services.
6    (d) The hearing may be held at such convenient place as the
7court directs, including at a facility in which the respondent
8resides.
9    (e) Unless he is the petitioner, the respondent shall be
10personally served with a copy of the petition and a summons not
11less than 14 days before the hearing. The summons shall be
12printed in large, bold type and shall include the following
13notice:
14
NOTICE OF RIGHTS OF RESPONDENT
15    You have been named as a respondent in a guardianship
16petition asking that you be declared a person with a
17disability. If the court grants the petition, a guardian will
18be appointed for you. A copy of the guardianship petition is
19attached for your convenience.
20The date and time of the hearing are:
21The place where the hearing will occur is:
22The Judge's name and phone number is:
23    If a guardian is appointed for you, the guardian may be
24given the right to make all important personal decisions for
25you, such as where you may live, what medical treatment you may
26receive, what places you may visit, and who may visit you. A

 

 

HB2816- 5 -LRB101 08686 LNS 53771 b

1guardian may also be given the right to control and manage your
2money and other property, including your home, if you own one.
3You may lose the right to make these decisions for yourself.
4    You have the following legal rights:
5        (1) You have the right to be present at the court
6    hearing.
7        (2) You have the right to be represented by a lawyer,
8    either one that you retain, or one appointed by the Judge.
9        (3) You have the right to ask for a jury of six persons
10    to hear your case.
11        (4) You have the right to present evidence to the court
12    and to confront and cross-examine witnesses.
13        (5) You have the right to ask the Judge to appoint an
14    independent expert to examine you and give an opinion about
15    your need for a guardian.
16        (6) You have the right to ask that the court hearing be
17    closed to the public.
18        (7) You have the right to tell the court whom you
19    prefer to have for your guardian.
20    You do not have to attend the court hearing if you do not
21want to be there. If you do not attend, the Judge may appoint a
22guardian if the Judge finds that a guardian would be of benefit
23to you. The hearing will not be postponed or canceled if you do
24not attend. If you are unable to attend the hearing in person
25or you will suffer harm if you attend, the Judge can decide to
26hold the hearing at a place that is convenient. The Judge can

 

 

HB2816- 6 -LRB101 08686 LNS 53771 b

1also follow the rule of the Supreme Court of this State, or its
2local equivalent, and decide if a video conference is
3appropriate.
4    IT IS VERY IMPORTANT THAT YOU ATTEND THE HEARING IF YOU DO
5NOT WANT A GUARDIAN OR IF YOU WANT SOMEONE OTHER THAN THE
6PERSON NAMED IN THE GUARDIANSHIP PETITION TO BE YOUR GUARDIAN.
7IF YOU DO NOT WANT A GUARDIAN OR IF YOU HAVE ANY OTHER
8PROBLEMS, YOU SHOULD CONTACT AN ATTORNEY OR COME TO COURT AND
9TELL THE JUDGE.
10    Service of summons and the petition may be made by a
11private person 18 years of age or over who is not a party to the
12action.
13    (f) Notice of the time and place of the hearing shall be
14given by the petitioner by mail or in person to those persons,
15including the proposed guardian, whose names and addresses
16appear in the petition and who do not waive notice, not less
17than 14 days before the hearing.
18(Source: P.A. 99-143, eff. 7-27-15; 99-642, eff. 7-28-16;
19100-201, eff. 8-18-17; 100-427, eff. 1-1-18.)