101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB4978

 

Introduced 2/18/2020, by Rep. Jennifer Gong-Gershowitz

 

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

    Amends the Probate Act of 1975. Provides that no petition for the appointment of a guardian of a minor shall be filed in which the primary purpose of the filing is to reduce the financial resources available to the minor in order to cause the minor to qualify for public or private financial assistance from an educational institution. Provides that the court may deny such a petition if it finds that the primary purpose of the filing is to enable the minor to declare financial independence so that the minor may obtain public or private financial assistance from an educational institution or a State or federal student financial aid program.


LRB101 17366 LNS 66771 b

 

 

A BILL FOR

 

HB4978LRB101 17366 LNS 66771 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 11-5 as follows:
 
6    (755 ILCS 5/11-5)  (from Ch. 110 1/2, par. 11-5)
7    Sec. 11-5. Appointment of guardian.
8    (a) Upon the filing of a petition for the appointment of a
9guardian or on its own motion, the court may appoint a guardian
10of the estate or of both the person and estate, of a minor, or
11may appoint a guardian of the person only of a minor or minors,
12as the court finds to be in the best interest of the minor or
13minors.
14    (a-1) A parent, adoptive parent or adjudicated parent,
15whose parental rights have not been terminated, may designate
16in any writing, including a will, a person qualified to act
17under Section 11-3 to be appointed as guardian of the person or
18estate, or both, of an unmarried minor or of a child likely to
19be born. A parent, adoptive parent or adjudicated parent, whose
20parental rights have not been terminated, or a guardian or a
21standby guardian of an unmarried minor or of a child likely to
22be born may designate in any writing, including a will, a
23person qualified to act under Section 11-3 to be appointed as

 

 

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1successor guardian of the minor's person or estate, or both.
2The designation must be witnessed by 2 or more credible
3witnesses at least 18 years of age, neither of whom is the
4person designated as the guardian. The designation may be
5proved by any competent evidence. If the designation is
6executed and attested in the same manner as a will, it shall
7have prima facie validity. The designation of a guardian or
8successor guardian does not affect the rights of the other
9parent in the minor.
10    (b) The court lacks jurisdiction to proceed on a petition
11for the appointment of a guardian of a minor if it finds that
12(i) the minor has a living parent, adoptive parent or
13adjudicated parent, whose parental rights have not been
14terminated, whose whereabouts are known, and who is willing and
15able to make and carry out day-to-day child care decisions
16concerning the minor, unless: (1) the parent or parents
17voluntarily relinquished physical custody of the minor; (2)
18after receiving notice of the hearing under Section 11-10.1,
19the parent or parents fail to object to the appointment at the
20hearing on the petition; (3) the parent or parents consent to
21the appointment as evidenced by a written document that has
22been notarized and dated, or by a personal appearance and
23consent in open court; or (4) the parent or parents, due to an
24administrative separation, are unable to give consent to the
25appointment in person or by a notarized, written document as
26evidenced by a sworn affidavit submitted by the petitioner

 

 

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1describing the parent's or parents' inability to receive notice
2or give consent; or (ii) there is a guardian for the minor
3appointed by a court of competent jurisdiction. There shall be
4a rebuttable presumption that a parent of a minor is willing
5and able to make and carry out day-to-day child care decisions
6concerning the minor, but the presumption may be rebutted by a
7preponderance of the evidence. If a short-term guardian has
8been appointed for the minor prior to the filing of the
9petition and the petitioner for guardianship is not the
10short-term guardian, there shall be a rebuttable presumption
11that it is in the best interest of the minor to remain in the
12care of the short-term guardian. The petitioner shall have the
13burden of proving by a preponderance of the evidence that it is
14not in the child's best interest to remain with the short-term
15guardian.
16    (b-1) If the court finds the appointment of a guardian of
17the minor to be in the best interest of the minor, and if a
18standby guardian has previously been appointed for the minor
19under Section 11-5.3, the court shall appoint the standby
20guardian as the guardian of the person or estate, or both, of
21the minor unless the court finds, upon good cause shown, that
22the appointment would no longer be in the best interest of the
23minor.
24    (b-2) No petition for the appointment of a guardian of a
25minor shall be filed in which the primary purpose of the filing
26is to reduce the financial resources available to the minor in

 

 

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1order to cause the minor to qualify for public or private
2financial assistance from an educational institution. The
3court may deny the petition if it finds by a preponderance of
4the evidence that the primary purpose of the filing is to
5enable the minor to declare financial independence so that the
6minor may obtain public or private financial assistance from an
7educational institution or a State or federal student financial
8aid program.
9    (c) If the minor is 14 years of age or more, the minor may
10nominate the guardian of the minor's person and estate, subject
11to approval of the court. If the minor's nominee is not
12approved by the court or if, after notice to the minor, the
13minor fails to nominate a guardian of the minor's person or
14estate, the court may appoint the guardian without nomination.
15    (d) The court shall not appoint as guardian of the person
16of the minor any person whom the court has determined had
17caused or substantially contributed to the minor becoming a
18neglected or abused minor as defined in the Juvenile Court Act
19of 1987, unless 2 years have elapsed since the last proven
20incident of abuse or neglect and the court determines that
21appointment of such person as guardian is in the best interests
22of the minor.
23    (e) Previous statements made by the minor relating to any
24allegations that the minor is an abused or neglected child
25within the meaning of the Abused and Neglected Child Reporting
26Act, or an abused or neglected minor within the meaning of the

 

 

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1Juvenile Court Act of 1987, shall be admissible in evidence in
2a hearing concerning appointment of a guardian of the person or
3estate of the minor. No such statement, however, if
4uncorroborated and not subject to cross-examination, shall be
5sufficient in itself to support a finding of abuse or neglect.
6(Source: P.A. 101-120, eff. 7-23-19.)