Full Text of SB2894 97th General Assembly
SB2894sam002 97TH GENERAL ASSEMBLY | Sen. Ira I. Silverstein Filed: 3/7/2012
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| 1 | | AMENDMENT TO SENATE BILL 2894
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 2894 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Guardianship and Advocacy Act is amended by | 5 | | changing Section 31 as follows:
| 6 | | (20 ILCS 3955/31) (from Ch. 91 1/2, par. 731)
| 7 | | Sec. 31. Appointment; availability of State Guardian; | 8 | | available private guardian. The State Guardian shall not be | 9 | | appointed if another suitable
person is available and willing | 10 | | to accept the guardianship appointment.
In all cases where a | 11 | | court appoints the State Guardian, the court shall
indicate in | 12 | | the order appointing the guardian as a finding of fact that no
| 13 | | other suitable and willing person could be found to accept the | 14 | | guardianship
appointment. On and after the effective date of
| 15 | | this amendatory Act of the 97th General Assembly, the court | 16 | | shall also indicate in the order, as a finding of fact, the |
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| 1 | | reasons that the State Guardian appointment, rather than the | 2 | | appointment of another interested party, is required. This | 3 | | requirement shall be waived where the Office of State
Guardian | 4 | | petitions for its own appointment as guardian.
| 5 | | (Source: P.A. 89-396, eff. 8-20-95.)
| 6 | | Section 10. The Clerks of Courts Act is amended by adding | 7 | | Section 27.3f as follows: | 8 | | (705 ILCS 105/27.3f new) | 9 | | Sec. 27.3f. Guardianship and advocacy operations fee. | 10 | | (a) As used in this Section, "guardianship and advocacy" | 11 | | means the guardianship and advocacy services provided by the | 12 | | Guardianship and Advocacy Commission and defined in the | 13 | | Guardianship and Advocacy Act. Viable public guardianship and | 14 | | advocacy programs, including the public guardianship programs | 15 | | created and supervised in probate proceedings in the Illinois | 16 | | courts, are essential to the administration of justice and | 17 | | ensure that incapacitated persons and their estates are | 18 | | protected. To defray the expense of maintaining and operating | 19 | | the divisions and programs of the Guardianship and Advocacy | 20 | | Commission and to support viable guardianship and advocacy | 21 | | programs throughout Illinois, each circuit court clerk shall | 22 | | charge and collect a fee on all matters filed in probate cases | 23 | | in accordance with this Section, but no fees shall be assessed | 24 | | against the State Guardian, any State agency under the |
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| 1 | | jurisdiction of the Governor, any public guardian, or any | 2 | | State's Attorney. | 3 | | (b) No fees specified in this Section shall be imposed in | 4 | | any minor guardianship established under Article XI of the | 5 | | Probate Act of 1975, or against an indigent person. An indigent | 6 | | person shall include any person who meets one or more of the | 7 | | following criteria: | 8 | | (1) He or she is receiving assistance under one or more | 9 | | of the following public benefits programs: Supplemental | 10 | | Security Income (SSI), Aid to the Aged, Blind, and Disabled | 11 | | (AABD), Temporary Assistance for Needy Families (TANF), | 12 | | Food Stamps, General Assistance, State Transitional | 13 | | Assistance, or State Children and Family Assistance. | 14 | | (2) His or her available income is 125% or less of the | 15 | | current poverty level as established by the United States | 16 | | Department of Health and Human Services, unless the | 17 | | applicant's assets that are not exempt under Part 9 or 10 | 18 | | of Article XII of this Code are of a nature and value that | 19 | | the court determines that the applicant is able to pay the | 20 | | fees, costs, and charges. | 21 | | (3) He or she is, in the discretion of the court, | 22 | | unable to proceed in an action without payment of fees, | 23 | | costs, and charges and whose payment of those fees, costs, | 24 | | and charges would result in substantial hardship to the | 25 | | person or his or her family. | 26 | | (4) He or she is an indigent person pursuant to Section |
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| 1 | | 5-105.5 of the Code of Civil Procedure, providing that an | 2 | | "indigent person" means a person whose income is 125% or | 3 | | less of the current official federal poverty guidelines or | 4 | | who is otherwise eligible to receive civil legal services | 5 | | under the Legal Services Corporation Act of 1974. | 6 | | (c) The clerk is entitled to receive the fees specified in | 7 | | this Section, which shall be paid in advance, and managed by | 8 | | the clerk as set out in paragraph (4), except that, for good | 9 | | cause shown, the court may suspend, reduce, or release the | 10 | | costs payable under this Section: | 11 | | (1) For administration of the estate of a decedent | 12 | | (whether testate or intestate) or of a missing person, a | 13 | | fee of $50, plus the fees specified in paragraph (3), | 14 | | except: | 15 | | (A) When the value of the real and personal | 16 | | property of a decedent (whether testate or intestate) | 17 | | does not exceed $15,000, no fee shall be assessed. | 18 | | (B) When (i) proof of heirship alone is made, (ii) | 19 | | a domestic or foreign will is admitted to probate | 20 | | without administration (including proof of heirship), | 21 | | or (iii) letters of office are issued for a particular | 22 | | purpose without administration of the estate, the fee | 23 | | shall be $40. | 24 | | (2) For administration of the estate of a ward that | 25 | | results in the appointment of the Office of State Guardian, | 26 | | the fee shall be $250, plus the fees specified in paragraph |
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| 1 | | (3). | 2 | | (3) In addition to the fees payable under paragraph (1) | 3 | | or (2) of this subsection (c), the following fees are | 4 | | payable: | 5 | | (A) For each account (other than one final account) | 6 | | filed in the estate of a decedent, or ward, the fee | 7 | | shall be $25. | 8 | | (B) For filing a claim in an estate when the amount | 9 | | claimed is $150 or more but less than $500, the fee | 10 | | shall be $100; when the amount claimed is $500 or more | 11 | | but less than $10,000, the fee shall be $115; when the | 12 | | amount claimed is $10,000 or more, the fee shall be | 13 | | $135; provided that the court in allowing a claim may | 14 | | add to the amount allowed the filing fee paid by the | 15 | | claimant. | 16 | | (C) For filing in an estate a claim, petition, or | 17 | | supplemental proceeding based upon an action seeking | 18 | | equitable relief including the construction or contest | 19 | | of a will, enforcement of a contract to make a will, | 20 | | and proceedings involving a testamentary trust or the | 21 | | appointment of a testamentary trustee, the fee shall be | 22 | | $60. | 23 | | (D) For filing in an estate (i) the appearance of | 24 | | any person for the purpose of consent or (ii) the | 25 | | appearance of an executor, administrator, | 26 | | administrator to collect, guardian, guardian ad litem, |
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| 1 | | or special administrator, no fee. | 2 | | (E) Except as provided in subparagraph (D) of this | 3 | | paragraph (3), for filing the appearance of any person | 4 | | or persons, the fee shall be $30. | 5 | | (F) For each jury demand, the fee shall be $180. | 6 | | (G) For disposition of the collection of a judgment | 7 | | or settlement of an action or claim for wrongful death | 8 | | of a decedent or of any cause of action of a ward, when | 9 | | there is no other administration of the estate, the fee | 10 | | shall be $50, less any amount paid under subparagraph | 11 | | (B) of paragraph (1) or subparagraph (B) of this | 12 | | paragraph (3), except that if the amount involved does | 13 | | not exceed $5,000, the fee, including any amount paid | 14 | | under subparagraph (B) of paragraph (1) or | 15 | | subparagraph (B) of this paragraph (3), shall be $20. | 16 | | (4) The guardianship and advocacy operations fees, as | 17 | | outlined in this Section, shall be in addition to all other | 18 | | fees and charges and assessable as costs and shall not be | 19 | | subject to disbursement under Section 27.5 or 27.6 of this | 20 | | Act. Twenty percent of the fee shall be retained by the | 21 | | clerk to defray costs of collection and 80% of the fee | 22 | | shall be disbursed within 60 days after receipt by the | 23 | | circuit clerk to the State Treasurer for deposit by the | 24 | | State Treasurer into the Guardianship and Advocacy Fund. | 25 | | Section 15. The Probate Act of 1975 is amended by changing |
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| 1 | | Sections 11a-3, 11a-12, 11a-20, and 13-1 and by adding Section | 2 | | 13-1.3 as follows:
| 3 | | (755 ILCS 5/11a-3) (from Ch. 110 1/2, par. 11a-3)
| 4 | | Sec. 11a-3. Adjudication of disability; Power to appoint | 5 | | guardian.
| 6 | | (a) Upon the filing of a petition by a reputable person or | 7 | | by the alleged
disabled person himself or on its own motion, | 8 | | the court may adjudge a person
to be a disabled person, but | 9 | | only if it has been demonstrated by clear and
convincing | 10 | | evidence that the person is a disabled person as defined in | 11 | | Section
11a-2. If the court adjudges a person to be a disabled | 12 | | person, the court may appoint (1) a guardian of his person, if | 13 | | it has been demonstrated
by clear and convincing evidence that | 14 | | because of his disability he lacks
sufficient understanding or | 15 | | capacity
to make or communicate responsible decisions | 16 | | concerning the care of his
person, or (2) a guardian of his | 17 | | estate, if it has been demonstrated by clear
and convincing | 18 | | evidence that because of his disability he
is unable to manage | 19 | | his estate
or financial affairs, or (3) a guardian of his | 20 | | person and of his estate.
| 21 | | (b) Guardianship shall be utilized only as is necessary to | 22 | | promote
the well-being of the disabled person, to protect him | 23 | | from neglect,
exploitation, or abuse, and to encourage | 24 | | development of his maximum
self-reliance and independence. | 25 | | Guardianship shall be implemented in the least restrictive |
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| 1 | | alternative, shall maximize the alleged disabled person's | 2 | | right to self-determination and autonomy, and Guardianship | 3 | | shall be ordered only to
the extent necessitated by the | 4 | | individual's actual mental, physical and
adaptive limitations. | 5 | | In determining the least restrictive alternative, the court | 6 | | shall consider options that allow the ward to live, learn, and | 7 | | work in a setting that places as few limits as possible on the | 8 | | ward's rights and personal freedom as appropriate to meet the | 9 | | needs of the ward.
| 10 | | (Source: P.A. 93-435, eff. 1-1-04.)
| 11 | | (755 ILCS 5/11a-12) (from Ch. 110 1/2, par. 11a-12)
| 12 | | Sec. 11a-12.
Order of appointment.)
| 13 | | (a) If basis for the
appointment of a guardian as specified | 14 | | in Section 11a-3 is not found,
the court shall dismiss the | 15 | | petition.
| 16 | | (b) If the respondent is adjudged to be disabled and to | 17 | | lack some but not all of the be totally
without capacity as | 18 | | specified in Section 11a-3, and if the court finds that
limited | 19 | | guardianship is necessary for the protection of will not | 20 | | provide sufficient protection for the disabled
person, his or | 21 | | her estate, or both, the court shall appoint a
limited plenary | 22 | | guardian for the respondent's person or estate or both. The
| 23 | | court shall enter a written order stating
the factual basis for | 24 | | its findings and specifying the duties and powers of the | 25 | | guardian and the legal disabilities to which the respondent is |
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| 1 | | subject .
| 2 | | (c) If the respondent is adjudged to be disabled and to be | 3 | | totally without lack some but
not all of the capacity as | 4 | | specified in Section 11a-3, and if the court finds
that limited | 5 | | guardianship will not provide sufficient is necessary for the | 6 | | protection for of the disabled person, his
or her estate, or | 7 | | both, the court shall
appoint a plenary guardian for limited | 8 | | guardian of the respondent's person or estate or both.
The | 9 | | court shall enter a written order stating the factual basis
for | 10 | | its findings and specifying the duties and powers
of the | 11 | | guardian and the legal disabilities to which the respondent is
| 12 | | subject .
| 13 | | (d) The selection of the guardian shall be in the | 14 | | discretion
of the court, which shall give due consideration to | 15 | | the preference of the
disabled person as to a guardian, as well | 16 | | as the qualifications of the
proposed guardian, in making its | 17 | | appointment.
| 18 | | (Source: P.A. 89-396, eff. 8-20-95.)
| 19 | | (755 ILCS 5/11a-20) (from Ch. 110 1/2, par. 11a-20)
| 20 | | Sec. 11a-20.
Termination of adjudication of disability - | 21 | | Revocation
of letters - modification.) (a) Except as provided | 22 | | in subsection (b-5), upon Upon the filing of
a petition by or | 23 | | on behalf of a disabled person or on its own motion, the
court | 24 | | may terminate the adjudication of disability of the ward, | 25 | | revoke the
letters of guardianship of the estate or person, or |
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| 1 | | both, or modify the duties
of the guardian if the ward's | 2 | | capacity to perform the tasks necessary for
the care of his | 3 | | person or the management of his estate has been
demonstrated by | 4 | | clear and convincing evidence. A report or testimony by a
| 5 | | licensed physician is not a prerequisite for termination, | 6 | | revocation or
modification of a guardianship order under this | 7 | | subsection (a) .
| 8 | | (b) Except as provided in subsection (b-5), a A request by | 9 | | the ward or any other person on the ward's behalf,
under this | 10 | | Section may be communicated to the court or judge by any means,
| 11 | | including but not limited to informal letter, telephone call or | 12 | | visit. Upon
receipt of a request from the ward or another | 13 | | person, the court may
appoint a guardian ad litem to | 14 | | investigate and report to the court
concerning the allegations | 15 | | made in conjunction with said request, and if
the ward wishes | 16 | | to terminate, revoke, or modify the guardianship order, to
| 17 | | prepare the ward's petition and to render such other services | 18 | | as the court
directs.
| 19 | | (b-5) Upon the filing of a verified petition by the | 20 | | guardian of the disabled person or the disabled person, the | 21 | | court may terminate the adjudication of disability of the ward, | 22 | | revoke the letters of guardianship of the estate or person, or | 23 | | both, or modify the duties of the guardian if: (i) a report | 24 | | completed in accordance with subsection (a) of Section 11a-9 | 25 | | states that the disabled person is no longer in need of | 26 | | guardianship or that the type and scope of guardianship should |
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| 1 | | be modified; (ii) the disabled person no longer wishes to be | 2 | | under guardianship or desires that the type and scope of | 3 | | guardianship be modified; and (iii) the guardian of the | 4 | | disabled person states that it is in the best interest of the | 5 | | disabled person to terminate the adjudication of disability of | 6 | | the ward, revoke the letters of guardianship of the estate or | 7 | | person, or both, or modify the duties of the guardian, and | 8 | | provides the basis thereof. In a proceeding brought pursuant to | 9 | | this subsection (b-5), the court may terminate the adjudication | 10 | | of disability of the ward, revoke the letters of guardianship | 11 | | of the estate or person, or both, or modify the duties of the | 12 | | guardian, unless it has been demonstrated by clear and | 13 | | convincing evidence that the ward is incapable of performing | 14 | | the tasks necessary for the care of his or her person or the | 15 | | management of his or her estate. | 16 | | (c) Notice of the hearing on a petition under this Section, | 17 | | together
with a copy of the petition, shall be given to the | 18 | | ward, unless he is the
petitioner, and to each and every | 19 | | guardian to whom letters of guardianship
have been issued and | 20 | | not revoked, not less than 14 days before the hearing.
| 21 | | (Source: P.A. 86-605.)
| 22 | | (755 ILCS 5/13-1) (from Ch. 110 1/2, par. 13-1)
| 23 | | Sec. 13-1. Appointment and term of public administrator and | 24 | | public guardian.)
Except as provided in Sections Section 13-1.1 | 25 | | and 13-1.3 , before the first Monday of December,
1977 and every |
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| 1 | | 4 years thereafter, and as often as vacancies occur, the
| 2 | | Governor, by and with the advice and consent of the Senate, | 3 | | shall
appoint in each county a suitable person to serve as | 4 | | public
administrator and a suitable person to serve as public | 5 | | guardian of the county.
The Governor may appoint the same | 6 | | person to serve as public guardian and public administrator in | 7 | | one or more counties. In considering the number of counties of | 8 | | service for any prospective public guardian or public | 9 | | administrator the Governor may consider the population of the | 10 | | county and the ability of the prospective public guardian or | 11 | | public administrator to travel to multiple counties and manage | 12 | | estates in multiple counties. Each person so appointed holds | 13 | | his office for
4 years from the first Monday of December, 1977 | 14 | | and every 4 years
thereafter or until his successor is | 15 | | appointed and qualified.
| 16 | | (Source: P.A. 96-752, eff. 1-1-10.)
| 17 | | (755 ILCS 5/13-1.3 new) | 18 | | Sec. 13-1.3. Transition to Office of State Guardian. In | 19 | | counties having a population of 1,000,000 or less, and in which | 20 | | there is no currently serving public guardian, the Governor | 21 | | shall, within 90 days after the effective date of this | 22 | | amendatory Act of the 97th General Assembly, appoint the Office | 23 | | of State Guardian the public guardian. In counties having a | 24 | | population of 1,000,000 or less, and in which a public guardian | 25 | | is currently serving but that public guardian's term of office |
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| 1 | | has expired, the Governor shall, no earlier than 9 months and | 2 | | no later than 15 months after the effective date of this | 3 | | amendatory Act of the 97th General Assembly, appoint the Office | 4 | | of State Guardian the public guardian. Subsequently, in | 5 | | counties having a population of 1,000,000 or less and upon the | 6 | | expiration of the public guardian's term, the State Guardian | 7 | | shall be appointed the public guardian. The State Guardian | 8 | | appointed as public guardian shall serve continuously and not | 9 | | be subject to 4-year terms of appointment. In cases in which | 10 | | the State Guardian serves as public guardian, the State | 11 | | Guardian shall assume only the duties described in Sections 30 | 12 | | and 32 of the Guardianship and Advocacy Act and shall be | 13 | | otherwise subject to the provisions of the Guardianship and | 14 | | Advocacy Act and not this Article XIII. ".
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