Sen. Karina Villa
Filed: 3/8/2024
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1 | AMENDMENT TO SENATE BILL 2758 | ||||||
2 | AMENDMENT NO. ______. Amend Senate Bill 2758 by replacing | ||||||
3 | everything after the enacting clause with the following: | ||||||
4 | "Section 5. The Probate Act of 1975 is amended by changing | ||||||
5 | Section 11a-17 as follows: | ||||||
6 | (755 ILCS 5/11a-17) (from Ch. 110 1/2, par. 11a-17) | ||||||
7 | Sec. 11a-17. Duties of personal guardian. | ||||||
8 | (a) To the extent ordered by the court and under the | ||||||
9 | direction of the court, the guardian of the person shall have | ||||||
10 | custody of the ward and the ward's minor and adult dependent | ||||||
11 | children and shall procure for them and shall make provision | ||||||
12 | for their support, care, comfort, health, education and | ||||||
13 | maintenance, and professional services as are appropriate, but | ||||||
14 | the ward's spouse may not be deprived of the custody and | ||||||
15 | education of the ward's minor and adult dependent children, | ||||||
16 | without the consent of the spouse, unless the court finds that |
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1 | the spouse is not a fit and competent person to have that | ||||||
2 | custody and education. The guardian shall assist the ward in | ||||||
3 | the development of maximum self-reliance and independence. The | ||||||
4 | guardian of the person may petition the court for an order | ||||||
5 | directing the guardian of the estate to pay an amount | ||||||
6 | periodically for the provision of the services specified by | ||||||
7 | the court order. If the ward's estate is insufficient to | ||||||
8 | provide for education and the guardian of the ward's person | ||||||
9 | fails to provide education, the court may award the custody of | ||||||
10 | the ward to some other person for the purpose of providing | ||||||
11 | education. If a person makes a settlement upon or provision | ||||||
12 | for the support or education of a ward, the court may make an | ||||||
13 | order for the visitation of the ward by the person making the | ||||||
14 | settlement or provision as the court deems proper. A guardian | ||||||
15 | of the person may not admit a ward to a mental health facility | ||||||
16 | except at the ward's request as provided in Article IV of the | ||||||
17 | Mental Health and Developmental Disabilities Code and unless | ||||||
18 | the ward has the capacity to consent to such admission as | ||||||
19 | provided in Article IV of the Mental Health and Developmental | ||||||
20 | Disabilities Code. | ||||||
21 | (a-3) If a guardian of an estate has not been appointed, | ||||||
22 | the guardian of the person may, without an order of court, | ||||||
23 | open, maintain, and transfer funds to an ABLE account on | ||||||
24 | behalf of the ward and the ward's minor and adult dependent | ||||||
25 | children as specified under Section 16.6 of the State | ||||||
26 | Treasurer Act. |
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1 | (a-5) If the ward filed a petition for dissolution of | ||||||
2 | marriage under the Illinois Marriage and Dissolution of | ||||||
3 | Marriage Act before the ward was adjudicated a person with a | ||||||
4 | disability under this Article, the guardian of the ward's | ||||||
5 | person and estate may maintain that action for dissolution of | ||||||
6 | marriage on behalf of the ward. Upon petition by the guardian | ||||||
7 | of the ward's person or estate, the court may authorize and | ||||||
8 | direct a guardian of the ward's person or estate to file a | ||||||
9 | petition for dissolution of marriage or to file a petition for | ||||||
10 | legal separation or declaration of invalidity of marriage | ||||||
11 | under the Illinois Marriage and Dissolution of Marriage Act on | ||||||
12 | behalf of the ward if the court finds by clear and convincing | ||||||
13 | evidence that the relief sought is in the ward's best | ||||||
14 | interests. In making its determination, the court shall | ||||||
15 | consider the standards set forth in subsection (e) of this | ||||||
16 | Section. | ||||||
17 | (a-10) A ward who understands the nature, effect, duties, | ||||||
18 | and obligations of marriage retains the fundamental right to | ||||||
19 | marriage. Prior consent of the guardian of the person or | ||||||
20 | estate or approval of the court is not required for the ward to | ||||||
21 | enter into a marriage. The ward, guardian of the person, or | ||||||
22 | guardian of the estate may petition for the approval or | ||||||
23 | ratification of marriage. Upon petition by the guardian of the | ||||||
24 | ward's person or estate, the court may authorize and direct a | ||||||
25 | guardian of the ward's person or estate to consent, on behalf | ||||||
26 | of the ward, to the ward's marriage pursuant to Part II of the |
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1 | Illinois Marriage and Dissolution of Marriage Act if the court | ||||||
2 | finds by clear and convincing evidence that the marriage is in | ||||||
3 | the ward's best interests. In making its determination, the | ||||||
4 | court shall consider the standards set forth in subsection (e) | ||||||
5 | of this Section. Upon presentation of a court order | ||||||
6 | authorizing and directing a guardian of the ward's person and | ||||||
7 | estate to consent to the ward's marriage, the county clerk | ||||||
8 | shall accept the guardian's application, appearance, and | ||||||
9 | signature on behalf of the ward for purposes of issuing a | ||||||
10 | license to marry under Section 203 of the Illinois Marriage | ||||||
11 | and Dissolution of Marriage Act. | ||||||
12 | (a-15) A court may remove the ward's right to marriage if | ||||||
13 | the request for removal is brought at the time of the petition | ||||||
14 | for appointment of a limited or plenary guardian. A court may | ||||||
15 | remove the ward's right to marriage based on evidence | ||||||
16 | presented at a hearing under Section 11a-11 if it finds, while | ||||||
17 | taking into consideration the expressed preferences of the | ||||||
18 | ward, by clear and convincing evidence that the ward lacks the | ||||||
19 | capacity to understand the nature, effect, duties, and | ||||||
20 | obligations of marriage or if the court finds other good | ||||||
21 | cause, by clear and convincing evidence, that the right to | ||||||
22 | marriage should be removed. A guardian may petition the court | ||||||
23 | to remove the right to marriage at any time during the | ||||||
24 | guardianship if not addressed at the time of appointment. Any | ||||||
25 | marriage entered into after the removal of the right to | ||||||
26 | marriage is void unless the court had reinstated the right to |
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1 | marriage. A ward, guardian of the person, or guardian of the | ||||||
2 | estate may seek judicial approval to reinstate the right to | ||||||
3 | marriage and, if the court finds that the right to marriage | ||||||
4 | should be reinstated, the court may enter an order declaring | ||||||
5 | the right restored. | ||||||
6 | (a-20) A guardian may petition the probate court for an | ||||||
7 | order voiding the marriage for the reason that the marriage | ||||||
8 | will result in substantial harm to the ward or the ward's | ||||||
9 | estate; this petition must be proved by clear and convincing | ||||||
10 | evidence and the guardian bears the burden of proof. Any | ||||||
11 | action brought to void the marriage, pursuant to this | ||||||
12 | provision, is brought before the probate court. An action to | ||||||
13 | void the marriage survives the death of the ward and may be | ||||||
14 | brought as an action in an estate administration. | ||||||
15 | (b) If the court directs, the guardian of the person shall | ||||||
16 | file with the court at intervals indicated by the court, a | ||||||
17 | report that shall state briefly: (1) the current mental, | ||||||
18 | physical, and social condition of the ward and the ward's | ||||||
19 | minor and adult dependent children; (2) their present living | ||||||
20 | arrangement, and a description and the address of every | ||||||
21 | residence where they lived during the reporting period and the | ||||||
22 | length of stay at each place; (3) a summary of the medical, | ||||||
23 | educational, vocational, and other professional services given | ||||||
24 | to them; (4) a resume of the guardian's visits with and | ||||||
25 | activities on behalf of the ward and the ward's minor and adult | ||||||
26 | dependent children; (5) a recommendation as to the need for |
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1 | continued guardianship; (6) any other information requested by | ||||||
2 | the court or useful in the opinion of the guardian. The Office | ||||||
3 | of the State Guardian shall assist the guardian in filing the | ||||||
4 | report when requested by the guardian. The court may take such | ||||||
5 | action as it deems appropriate pursuant to the report. | ||||||
6 | (c) Absent court order pursuant to the Illinois Power of | ||||||
7 | Attorney Act directing a guardian to exercise powers of the | ||||||
8 | principal under an agency that survives disability, the | ||||||
9 | guardian has no power, duty, or liability with respect to any | ||||||
10 | personal or health care matters covered by the agency. This | ||||||
11 | subsection (c) applies to all agencies, whenever and wherever | ||||||
12 | executed. | ||||||
13 | (d) A guardian acting as a surrogate decision maker under | ||||||
14 | the Health Care Surrogate Act shall have all the rights of a | ||||||
15 | surrogate under that Act without court order including the | ||||||
16 | right to make medical treatment decisions such as decisions to | ||||||
17 | forgo or withdraw life-sustaining treatment. Any decisions by | ||||||
18 | the guardian to forgo or withdraw life-sustaining treatment | ||||||
19 | that are not authorized under the Health Care Surrogate Act | ||||||
20 | shall require a court order. Nothing in this Section shall | ||||||
21 | prevent an agent acting under a power of attorney for health | ||||||
22 | care from exercising his or her authority under the Illinois | ||||||
23 | Power of Attorney Act without further court order, unless a | ||||||
24 | court has acted under Section 2-10 of the Illinois Power of | ||||||
25 | Attorney Act. If a guardian is also a health care agent for the | ||||||
26 | ward under a valid power of attorney for health care, the |
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1 | guardian acting as agent may execute his or her authority | ||||||
2 | under that act without further court order. | ||||||
3 | (e) Decisions made by a guardian on behalf of a ward shall | ||||||
4 | be made in accordance with the following standards for | ||||||
5 | decision making. The guardian shall consider the ward's | ||||||
6 | current preferences to the extent the ward has the ability to | ||||||
7 | participate in decision making when those preferences are | ||||||
8 | known or reasonably ascertainable by the guardian. Decisions | ||||||
9 | by the guardian shall conform to the ward's current | ||||||
10 | preferences: (1) unless the guardian reasonably believes that | ||||||
11 | doing so would result in substantial harm to the ward's | ||||||
12 | welfare or personal or financial interests; and (2) so long as | ||||||
13 | such decisions give substantial weight to what the ward, if | ||||||
14 | competent, would have done or intended under the | ||||||
15 | circumstances, taking into account evidence that includes, but | ||||||
16 | is not limited to, the ward's personal, philosophical, | ||||||
17 | religious and moral beliefs, and ethical values relative to | ||||||
18 | the decision to be made by the guardian. Where possible, the | ||||||
19 | guardian shall determine how the ward would have made a | ||||||
20 | decision based on the ward's previously expressed preferences, | ||||||
21 | and make decisions in accordance with the preferences of the | ||||||
22 | ward. If the ward's wishes are unknown and remain unknown | ||||||
23 | after reasonable efforts to discern them, or if the guardian | ||||||
24 | reasonably believes that a decision made in conformity with | ||||||
25 | the ward's preferences would result in substantial harm to the | ||||||
26 | ward's welfare or personal or financial interests, the |
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1 | decision shall be made on the basis of the ward's best | ||||||
2 | interests as determined by the guardian. In determining the | ||||||
3 | ward's best interests, the guardian shall weigh the reason for | ||||||
4 | and nature of the proposed action, the benefit or necessity of | ||||||
5 | the action, the possible risks and other consequences of the | ||||||
6 | proposed action, and any available alternatives and their | ||||||
7 | risks, consequences and benefits, and shall take into account | ||||||
8 | any other information, including the views of family and | ||||||
9 | friends, that the guardian believes the ward would have | ||||||
10 | considered if able to act for herself or himself. | ||||||
11 | (f) Upon petition by any interested person (including the | ||||||
12 | standby or short-term guardian), with such notice to | ||||||
13 | interested persons as the court directs and a finding by the | ||||||
14 | court that it is in the best interests of the person with a | ||||||
15 | disability, the court may terminate or limit the authority of | ||||||
16 | a standby or short-term guardian or may enter such other | ||||||
17 | orders as the court deems necessary to provide for the best | ||||||
18 | interests of the person with a disability. The petition for | ||||||
19 | termination or limitation of the authority of a standby or | ||||||
20 | short-term guardian may, but need not, be combined with a | ||||||
21 | petition to have another guardian appointed for the person | ||||||
22 | with a disability. | ||||||
23 | (g)(1) Unless there is a court order to the contrary, the | ||||||
24 | guardian, consistent with the standards set forth in | ||||||
25 | subsection (e) of this Section, shall use reasonable efforts | ||||||
26 | to notify the ward's known adult children, who have requested |
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1 | notification and provided contact information, of the ward's | ||||||
2 | admission to a hospital, hospice, or palliative care program, | ||||||
3 | the ward's death, and the arrangements for the disposition of | ||||||
4 | the ward's remains. | ||||||
5 | (2) If a guardian unreasonably prevents an adult child, | ||||||
6 | spouse, adult grandchild, parent, or adult sibling of the ward | ||||||
7 | from visiting the ward, the court, upon a verified petition, | ||||||
8 | may order the guardian to permit visitation between the ward | ||||||
9 | and the adult child, spouse, adult grandchild, parent, or | ||||||
10 | adult sibling. In making its determination, the court shall | ||||||
11 | consider the standards set forth in subsection (e) of this | ||||||
12 | Section. The court shall not allow visitation if the court | ||||||
13 | finds that the ward has capacity to evaluate and communicate | ||||||
14 | decisions regarding visitation and expresses a desire not to | ||||||
15 | have visitation with the petitioner. This subsection (g) does | ||||||
16 | not apply to duly appointed public guardians or the Office of | ||||||
17 | State Guardian. | ||||||
18 | (Source: P.A. 101-329, eff. 8-9-19; 102-72, eff. 1-1-22; | ||||||
19 | 102-258, eff. 8-6-21; 102-813, eff. 5-13-22.)". |