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Full Text of HB4831  102nd General Assembly

HB4831 102ND GENERAL ASSEMBLY

  
  

 


 
102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
HB4831

 

Introduced 1/27/2022, by Rep. Daniel Didech

 

SYNOPSIS AS INTRODUCED:
 
755 ILCS 5/11a-9  from Ch. 110 1/2, par. 11a-9
755 ILCS 5/11a-18  from Ch. 110 1/2, par. 11a-18

    Amends the Guardians for Adults with Disabilities Article of the Probate Act of 1975. Deletes language providing that the required report for a petition for adjudication of disability, in the case of an intellectual disability, may contain a psychological evaluation of the respondent that has been performed by a clinical psychologist licensed under the Clinical Psychologist Licensing Act, within one year of the date of the filing of the petition. Provides instead that the required report that is attached to a petition for adjudication of disability and for appointment of a guardian may contain a psychological evaluation that assesses the cognitive, emotional, and functional capacities of the respondent and that has been performed by a licensed clinical psychologist within 3 months of the date of the filing of the petition or within one year of the date of the filing of the petition in the case of an individual with an intellectual disability. Makes a corresponding change Effective immediately.


LRB102 23971 LNS 33176 b

 

 

A BILL FOR

 

HB4831LRB102 23971 LNS 33176 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
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, the respondent's ability to fully
12manage the respondent's estate or person, and an assessment of
13how the disability impacts on the ability of the respondent to
14make decisions or to function independently; (2) an analysis
15and results of evaluations of the respondent's mental and
16physical condition and, where appropriate, educational
17condition, adaptive behavior and social skills, which have
18been performed within 3 months of the date of the filing of the
19petition, or a psychological evaluation that assesses the
20cognitive, emotional, and functional capacities of the
21respondent and that has been performed by a licensed clinical
22psychologist under the Clinical Psychologist Licensing Act
23within 3 months of the date of the filing of the petition or

 

 

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1within one year of the date of the filing of the petition in
2the case of an individual with an intellectual disability , in
3the case of an intellectual disability, a psychological
4evaluation of the respondent that has been performed by a
5clinical psychologist licensed under the Clinical Psychologist
6Licensing Act, within one year of the date of the filing of the
7petition; (3) an opinion as to whether guardianship is needed,
8the type and scope of the guardianship needed, and the reasons
9therefor; (4) a recommendation as to the most suitable living
10arrangement and, where appropriate, treatment or habilitation
11plan for the respondent and the reasons therefor; (5) the
12name, business address, business telephone number, and
13signatures of all persons who performed the evaluations upon
14which the report is based, one of whom shall be a licensed
15physician, or may, in the case of an intellectual disability,
16be a licensed clinical psychologist licensed under the
17Clinical Psychologist Licensing Act, and a statement of the
18certification, license, or other credentials that qualify the
19evaluators who prepared the report.
20    (b) If for any reason no report accompanies the petition,
21the court shall order appropriate evaluations to be performed
22by a qualified person or persons and a report prepared and
23filed with the court at least 10 days prior to the hearing.
24    (b-5) Upon oral or written motion by the respondent or the
25guardian ad litem or upon the court's own motion, the court
26shall appoint one or more independent experts to examine the

 

 

HB4831- 3 -LRB102 23971 LNS 33176 b

1respondent. Upon the filing with the court of a verified
2statement of services rendered by the expert or experts, the
3court shall determine a reasonable fee for the services
4performed. If the respondent is unable to pay the fee, the
5court may enter an order upon the petitioner to pay the entire
6fee or such amount as the respondent is unable to pay. However,
7in cases where the Office of State Guardian is the petitioner,
8consistent with Section 30 of the Guardianship and Advocacy
9Act, no expert services fees shall be assessed against the
10Office of the State Guardian.
11    (c) Unless the court otherwise directs, any report
12prepared pursuant to this Section shall not be made part of the
13public record of the proceedings but shall be available to the
14court or an appellate court in which the proceedings are
15subject to review, to the respondent, the petitioner, the
16guardian, and their attorneys, to the respondent's guardian ad
17litem, and to such other persons as the court may direct.
18(Source: P.A. 102-109, eff. 1-1-22.)
 
19    (755 ILCS 5/11a-18)  (from Ch. 110 1/2, par. 11a-18)
20    Sec. 11a-18. Duties of the estate guardian.
21    (a) To the extent specified in the order establishing the
22guardianship, the guardian of the estate shall have the care,
23management and investment of the estate, shall manage the
24estate frugally and shall apply the income and principal of
25the estate so far as necessary for the comfort and suitable

 

 

HB4831- 4 -LRB102 23971 LNS 33176 b

1support and education of the ward, his minor and adult
2dependent children, and persons related by blood or marriage
3who are dependent upon or entitled to support from him, or for
4any other purpose which the court deems to be for the best
5interests of the ward, and the court may approve the making on
6behalf of the ward of such agreements as the court determines
7to be for the ward's best interests. The guardian may make
8disbursement of his ward's funds and estate directly to the
9ward or other distributee or in such other manner and in such
10amounts as the court directs. If the estate of a ward is
11derived in whole or in part from payments of compensation,
12adjusted compensation, pension, insurance or other similar
13benefits made directly to the estate by the Veterans
14Administration, notice of the application for leave to invest
15or expend the ward's funds or estate, together with a copy of
16the petition and proposed order, shall be given to the
17Veterans' Administration Regional Office in this State at
18least 7 days before the hearing on the application.
19    (a-5) The probate court, upon petition of a guardian,
20other than the guardian of a minor, and after notice to all
21other persons interested as the court directs, may authorize
22the guardian to exercise any or all powers over the estate and
23business affairs of the ward that the ward could exercise if
24present and not under disability. The court may authorize the
25taking of an action or the application of funds not required
26for the ward's current and future maintenance and support in

 

 

HB4831- 5 -LRB102 23971 LNS 33176 b

1any manner approved by the court as being in keeping with the
2ward's wishes so far as they can be ascertained. The court must
3consider the permanence of the ward's disabling condition and
4the natural objects of the ward's bounty. In ascertaining and
5carrying out the ward's wishes the court may consider, but
6shall not be limited to, minimization of State or federal
7income, estate, or inheritance taxes; and providing gifts to
8charities, relatives, and friends that would be likely
9recipients of donations from the ward. The ward's wishes as
10best they can be ascertained shall be carried out, whether or
11not tax savings are involved. Actions or applications of funds
12may include, but shall not be limited to, the following:
13        (1) making gifts of income or principal, or both, of
14    the estate, either outright or in trust;
15        (2) conveying, releasing, or disclaiming his or her
16    contingent and expectant interests in property, including
17    marital property rights and any right of survivorship
18    incident to joint tenancy or tenancy by the entirety;
19        (3) releasing or disclaiming his or her powers as
20    trustee, personal representative, custodian for minors, or
21    guardian;
22        (4) exercising, releasing, or disclaiming his or her
23    powers as donee of a power of appointment;
24        (5) entering into contracts;
25        (6) creating for the benefit of the ward or others,
26    revocable or irrevocable trusts of his or her property

 

 

HB4831- 6 -LRB102 23971 LNS 33176 b

1    that may extend beyond his or her disability or life;
2        (7) exercising options of the ward to purchase or
3    exchange securities or other property;
4        (8) exercising the rights of the ward to elect benefit
5    or payment options, to terminate, to change beneficiaries
6    or ownership, to assign rights, to borrow, or to receive
7    cash value in return for a surrender of rights under any
8    one or more of the following:
9            (i) life insurance policies, plans, or benefits,
10            (ii) annuity policies, plans, or benefits,
11            (iii) mutual fund and other dividend investment
12        plans,
13            (iv) retirement, profit sharing, and employee
14        welfare plans and benefits;
15        (9) exercising his or her right to claim or disclaim
16    an elective share in the estate of his or her deceased
17    spouse and to renounce any interest by testate or
18    intestate succession or by inter vivos transfer;
19        (10) changing the ward's residence or domicile; or
20        (11) modifying by means of codicil or trust amendment
21    the terms of the ward's will or any revocable trust
22    created by the ward, as the court may consider advisable
23    in light of changes in applicable tax laws.
24    The guardian in his or her petition shall briefly outline
25the action or application of funds for which he or she seeks
26approval, the results expected to be accomplished thereby, and

 

 

HB4831- 7 -LRB102 23971 LNS 33176 b

1the tax savings, if any, expected to accrue. The proposed
2action or application of funds may include gifts of the ward's
3personal property or real estate, but transfers of real estate
4shall be subject to the requirements of Section 20 of this Act.
5Gifts may be for the benefit of prospective legatees,
6devisees, or heirs apparent of the ward or may be made to
7individuals or charities in which the ward is believed to have
8an interest. The guardian shall also indicate in the petition
9that any planned disposition is consistent with the intentions
10of the ward insofar as they can be ascertained, and if the
11ward's intentions cannot be ascertained, the ward will be
12presumed to favor reduction in the incidents of various forms
13of taxation and the partial distribution of his or her estate
14as provided in this subsection. The guardian shall not,
15however, be required to include as a beneficiary or fiduciary
16any person who he has reason to believe would be excluded by
17the ward. A guardian shall be required to investigate and
18pursue a ward's eligibility for governmental benefits.
19    (a-6) The guardian may, without an order of court, open,
20maintain, and transfer funds to an ABLE account on behalf of
21the ward and the ward's minor and adult dependent children as
22specified under Section 16.6 of the State Treasurer Act.
23    (b) Upon the direction of the court which issued his
24letters, a guardian may perform the contracts of his ward
25which were legally subsisting at the time of the commencement
26of the ward's disability. The court may authorize the guardian

 

 

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1to execute and deliver any bill of sale, deed or other
2instrument.
3    (c) The guardian of the estate of a ward shall appear for
4and represent the ward in all legal proceedings unless another
5person is appointed for that purpose as guardian or next
6friend. This does not impair the power of any court to appoint
7a guardian ad litem or next friend to defend the interests of
8the ward in that court, or to appoint or allow any person as
9the next friend of a ward to commence, prosecute or defend any
10proceeding in his behalf. Without impairing the power of the
11court in any respect, if the guardian of the estate of a ward
12and another person as next friend shall appear for and
13represent the ward in a legal proceeding in which the
14compensation of the attorney or attorneys representing the
15guardian and next friend is solely determined under a
16contingent fee arrangement, the guardian of the estate of the
17ward shall not participate in or have any duty to review the
18prosecution of the action, to participate in or review the
19appropriateness of any settlement of the action, or to
20participate in or review any determination of the
21appropriateness of any fees awarded to the attorney or
22attorneys employed in the prosecution of the action.
23    (d) Adjudication of disability shall not revoke or
24otherwise terminate a trust which is revocable by the ward. A
25guardian of the estate shall have no authority to revoke a
26trust that is revocable by the ward, except that the court may

 

 

HB4831- 9 -LRB102 23971 LNS 33176 b

1authorize a guardian to revoke a Totten trust or similar
2deposit or withdrawable capital account in trust to the extent
3necessary to provide funds for the purposes specified in
4paragraph (a) of this Section. If the trustee of any trust for
5the benefit of the ward has discretionary power to apply
6income or principal for the ward's benefit, the trustee shall
7not be required to distribute any of the income or principal to
8the guardian of the ward's estate, but the guardian may bring
9an action on behalf of the ward to compel the trustee to
10exercise the trustee's discretion or to seek relief from an
11abuse of discretion. This paragraph shall not limit the right
12of a guardian of the estate to receive accountings from the
13trustee on behalf of the ward.
14    (d-5) Upon a verified petition by the plenary or limited
15guardian of the estate or the request of the ward that is
16accompanied by a current physician's or a licensed clinical
17psychologist's report that states the ward possesses
18testamentary capacity, the court may enter an order
19authorizing the ward to execute a will or codicil. In so
20ordering, the court shall authorize the guardian to retain
21independent counsel for the ward with whom the ward may
22execute or modify a will or codicil.
23    (e) Absent court order pursuant to the Illinois Power of
24Attorney Act directing a guardian to exercise powers of the
25principal under an agency that survives disability, the
26guardian will have no power, duty or liability with respect to

 

 

HB4831- 10 -LRB102 23971 LNS 33176 b

1any property subject to the agency. This subsection (e)
2applies to all agencies, whenever and wherever executed.
3    (f) Upon petition by any interested person (including the
4standby or short-term guardian), with such notice to
5interested persons as the court directs and a finding by the
6court that it is in the best interests of the person with a
7disability, the court may terminate or limit the authority of
8a standby or short-term guardian or may enter such other
9orders as the court deems necessary to provide for the best
10interests of the person with a disability. The petition for
11termination or limitation of the authority of a standby or
12short-term guardian may, but need not, be combined with a
13petition to have another guardian appointed for the person
14with a disability.
15(Source: P.A. 101-329, eff. 8-9-19; 102-72, eff. 1-1-22.)
 
16    Section 99. Effective date. This Act takes effect upon
17becoming law.