Full Text of SB1612 98th General Assembly
SB1612sam001 98TH GENERAL ASSEMBLY | Sen. Ira I. Silverstein Filed: 2/28/2013
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| 1 | | AMENDMENT TO SENATE BILL 1612
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 1612 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Guardianship and Advocacy Act is amended by | 5 | | adding Section 33.5 as follows: | 6 | | (20 ILCS 3955/33.5 new) | 7 | | Sec. 33.5. Guardianship training program. The State | 8 | | Guardian may provide a training program that outlines the | 9 | | duties and responsibilities of guardians appointed under | 10 | | Article XIa of the Probate Act of 1975. The training program | 11 | | may be offered to courts at no
cost, and shall outline the | 12 | | responsibilities of guardians and the rights of disabled | 13 | | persons in guardianships
under Article XIa of the Probate Act | 14 | | of 1975. In developing the training program content, the State | 15 | | Guardian may
consult with the courts, State and national | 16 | | guardianship organizations, public guardians, advocacy |
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| 1 | | organizations, and persons and family members with direct | 2 | | experience with adult guardianship. | 3 | | Section 10. The Probate Act of 1975 is amended by changing | 4 | | Sections 11a-5, 11a-12, 11a-17, and 11a-21 as follows:
| 5 | | (755 ILCS 5/11a-5) (from Ch. 110 1/2, par. 11a-5)
| 6 | | Sec. 11a-5. Who may act as guardian.
| 7 | | (a) A person is qualified to act as guardian of the person | 8 | | and as guardian of the
estate of a disabled person if the court | 9 | | finds that the proposed guardian is capable of providing an | 10 | | active and suitable program of guardianship for the disabled | 11 | | person and that the proposed guardian: | 12 | | (1) has attained the age of 18 years; | 13 | | (2) is a resident of the United States; | 14 | | (3) is not of unsound mind; | 15 | | (4) is not an adjudged disabled person as defined in | 16 | | this Act; and | 17 | | (5) has not been convicted of a felony, unless the | 18 | | court finds appointment of the person convicted of a felony | 19 | | to be in the disabled person's best interests, and as part | 20 | | of the best interest determination, the court has | 21 | | considered the nature of the offense, the date of offense, | 22 | | and the evidence of the proposed guardian's | 23 | | rehabilitation. No person shall be appointed who has been | 24 | | convicted of a felony involving harm or threat to an |
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| 1 | | elderly or disabled person, including a felony sexual | 2 | | offense ; and .
| 3 | | (6) has completed a training program, developed by the | 4 | | State Guardian in accordance with Section 33.5 of the | 5 | | Guardianship and Advocacy Act, that outlines the | 6 | | responsibilities of guardians and the rights of disabled | 7 | | persons, and has been made available at no cost by the | 8 | | court or another suitable provider approved by the court. | 9 | | (b) Any public agency, or not-for-profit corporation found | 10 | | capable by
the court of providing an active and suitable | 11 | | program of guardianship for
the disabled person, taking into | 12 | | consideration the nature of such person's
disability and the | 13 | | nature of such organization's services, may be appointed
| 14 | | guardian of the person or of the estate, or both, of the | 15 | | disabled person.
The court shall not appoint as guardian an | 16 | | agency which is directly
providing residential services to the | 17 | | ward. One person or agency may be
appointed guardian of the | 18 | | person and another person or agency appointed
guardian of the | 19 | | estate.
| 20 | | (c) Any corporation qualified to accept and execute trusts | 21 | | in this State
may be appointed guardian of the estate of a | 22 | | disabled person.
| 23 | | (d) Public guardians, state guardians, attorneys currently | 24 | | authorized to practice law, and persons who are certified as | 25 | | National Certified Guardians by the Center for Guardianship | 26 | | Certification are exempt from the training requirement under |
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| 1 | | paragraph (6) of subsection (a) of this Section. | 2 | | (Source: P.A. 94-579, eff. 8-12-05.)
| 3 | | (755 ILCS 5/11a-12) (from Ch. 110 1/2, par. 11a-12)
| 4 | | Sec. 11a-12. Order of appointment.) | 5 | | (a) If basis for the
appointment of a guardian as specified | 6 | | in Section 11a-3 is not found,
the court shall dismiss the | 7 | | petition.
| 8 | | (b) If the respondent is adjudged to be disabled and to | 9 | | lack some but not all of the capacity as specified in Section | 10 | | 11a-3, and if the court finds that
guardianship is necessary | 11 | | for the protection of the disabled
person, his or her estate, | 12 | | or both, the court shall appoint a
limited guardian for the | 13 | | respondent's person or estate or both. The
court shall enter a | 14 | | written order stating
the factual basis for its findings and | 15 | | specifying the duties and powers of the guardian and the legal | 16 | | disabilities to which the respondent is subject.
| 17 | | (c) If the respondent is adjudged to be disabled and to be | 18 | | totally without capacity as specified in Section 11a-3, and if | 19 | | the court finds
that limited guardianship will not provide | 20 | | sufficient protection for the disabled person, his
or her | 21 | | estate, or both, the court shall
appoint a plenary guardian for | 22 | | the respondent's person or estate or both.
The court shall | 23 | | enter a written order stating the factual basis
for its | 24 | | findings.
| 25 | | (d) The selection of the guardian shall be in the |
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| 1 | | discretion
of the court, which shall give due consideration to | 2 | | the preference of the
disabled person as to a guardian, as well | 3 | | as the qualifications of the
proposed guardian, in making its | 4 | | appointment. A proposed guardian shall complete,
prior to a | 5 | | limited or plenary guardianship appointment, a training | 6 | | program for guardians as provided in subdivision (a)(6) of | 7 | | Section 11a-5 of this Act. The court may make a limited or | 8 | | plenary guardianship appointment conditional on the proposed | 9 | | guardian's completion of the training program.
| 10 | | (Source: P.A. 97-1093, eff. 1-1-13.)
| 11 | | (755 ILCS 5/11a-17) (from Ch. 110 1/2, par. 11a-17)
| 12 | | Sec. 11a-17. Duties of personal guardian.
| 13 | | (a) To the extent ordered by the court and under the | 14 | | direction of the
court, the guardian of the person shall have | 15 | | custody of the ward and the
ward's minor and adult dependent | 16 | | children and shall procure for them and shall
make provision | 17 | | for their support, care, comfort, health, education and
| 18 | | maintenance, and professional services as are appropriate, but | 19 | | the ward's
spouse may not be deprived of the custody and | 20 | | education of the ward's minor
and adult dependent children, | 21 | | without the consent of the spouse, unless the
court finds that | 22 | | the spouse is not a fit and competent person to have that
| 23 | | custody and education. The guardian shall assist the ward in | 24 | | the
development of maximum self-reliance and independence. The | 25 | | guardian of the
person may petition the court for an order |
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| 1 | | directing the guardian of the
estate to pay an amount | 2 | | periodically for the provision of the services
specified by the | 3 | | court order. If the ward's estate is insufficient to
provide | 4 | | for education and the guardian of the ward's person fails to
| 5 | | provide education, the court may award the custody of the ward | 6 | | to some
other person for the purpose of providing education. If | 7 | | a person makes a
settlement upon or provision for the support | 8 | | or education of a ward, the
court may make an order for the | 9 | | visitation of the ward by the person making
the settlement or | 10 | | provision as the court deems proper. A guardian of the person | 11 | | may not admit a ward to a mental health facility except at the | 12 | | ward's request as provided in Article IV of the Mental Health | 13 | | and Developmental Disabilities Code and unless the ward has the | 14 | | capacity to consent to such admission as provided in Article IV | 15 | | of the Mental Health and Developmental Disabilities Code.
| 16 | | (a-5) If the ward filed a petition for dissolution of | 17 | | marriage under the
Illinois
Marriage and Dissolution of | 18 | | Marriage Act before the ward was adjudicated a
disabled
person | 19 | | under this Article, the guardian of the ward's person and | 20 | | estate may
maintain that
action for
dissolution of marriage on | 21 | | behalf of the ward.
| 22 | | (b) If the court directs, the guardian of the person shall | 23 | | file
with the court at intervals indicated by the court, a | 24 | | report that
shall state briefly: (1) the current mental, | 25 | | physical, and social
condition of the ward and the ward's minor | 26 | | and adult dependent children; (2)
their present living |
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| 1 | | arrangement, and a description and the address of
every | 2 | | residence where they lived during the reporting period and the | 3 | | length
of stay at each place; (3) a summary of the medical, | 4 | | educational,
vocational, and other professional services given | 5 | | to them; (4) a resume of
the guardian's visits with and | 6 | | activities on behalf of the ward and the ward's
minor and adult | 7 | | dependent children; (5) a recommendation as to the need for
| 8 | | continued guardianship; (6) any other information requested by | 9 | | the court or
useful in the opinion of the guardian. The Office | 10 | | of the State Guardian
shall assist the guardian in filing the | 11 | | report when requested by the
guardian. The court may take such | 12 | | action as it deems appropriate pursuant
to the report.
| 13 | | (c) Absent court order pursuant to the Illinois Power of | 14 | | Attorney Act
directing a guardian to exercise powers of the | 15 | | principal under an agency
that survives disability, the | 16 | | guardian has no power, duty, or liability
with respect to any | 17 | | personal or health care matters covered by the agency.
This | 18 | | subsection (c) applies to all agencies, whenever and wherever | 19 | | executed.
| 20 | | (d) A guardian acting as a surrogate decision maker under | 21 | | the Health
Care Surrogate Act shall have all the rights of a | 22 | | surrogate under that Act
without court order including the | 23 | | right to make medical treatment decisions
such as decisions to | 24 | | forgo or withdraw life-sustaining treatment.
Any decisions by | 25 | | the guardian to forgo or withdraw life-sustaining treatment
| 26 | | that are not authorized under the Health Care Surrogate Act |
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| 1 | | shall require a
court order. Nothing in this Section shall | 2 | | prevent an agent acting under a
power of attorney for health | 3 | | care from exercising his or her authority under
the Illinois | 4 | | Power of Attorney Act without further court order, unless a | 5 | | court
has acted under Section 2-10 of the Illinois Power of | 6 | | Attorney Act. If a
guardian is also a health care agent for the | 7 | | ward under a valid power of
attorney for health care, the | 8 | | guardian acting as agent may execute his or her
authority under | 9 | | that act without further court order.
| 10 | | (e) Decisions made by a guardian on behalf of a ward shall | 11 | | be made in
accordance with the following
standards for decision | 12 | | making. Decisions made by a guardian on behalf of a ward
may be | 13 | | made by conforming as closely as possible to what the ward, if
| 14 | | competent, would have done or intended under the circumstances, | 15 | | taking into
account evidence that includes, but is not limited | 16 | | to, the ward's personal,
philosophical, religious and moral | 17 | | beliefs, and ethical values relative to the
decision to be made | 18 | | by the guardian. Where possible, the guardian shall
determine | 19 | | how the ward would have made a decision based on the ward's
| 20 | | previously expressed preferences, and make decisions in | 21 | | accordance with the
preferences of the ward. If the ward's | 22 | | wishes are unknown and remain unknown
after reasonable efforts | 23 | | to discern them, the decision shall be made on the
basis of the | 24 | | ward's best interests as determined by the guardian. In
| 25 | | determining the ward's best interests, the guardian shall weigh | 26 | | the reason for
and nature of the proposed action, the benefit |
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| 1 | | or necessity of the action, the
possible risks and other | 2 | | consequences of the proposed action, and any available
| 3 | | alternatives and their risks, consequences and benefits, and | 4 | | shall take into
account any other information, including the | 5 | | views of family and friends, that
the guardian believes the | 6 | | ward would have considered if able to act for herself
or | 7 | | himself.
| 8 | | (f) Upon petition by any interested person (including the | 9 | | standby or
short-term guardian), with such notice to interested | 10 | | persons as the court
directs and a finding by the court that it | 11 | | is in the best interest of the
disabled person, the court may | 12 | | terminate or limit the authority of a standby or
short-term | 13 | | guardian or may enter such other orders as the court deems | 14 | | necessary
to provide for the best interest of the disabled | 15 | | person. The petition
for termination or limitation of the | 16 | | authority of a standby or short-term
guardian may, but need | 17 | | not, be combined with a petition to have another
guardian | 18 | | appointed for the disabled person.
| 19 | | (g) A guardian of the person shall complete,
prior to a | 20 | | limited or plenary guardianship appointment, a training | 21 | | program for guardians as provided in subdivision (a)(6) of | 22 | | Section 11a-5 of this Act. | 23 | | (Source: P.A. 96-612, eff. 1-1-10.)
| 24 | | (755 ILCS 5/11a-21) (from Ch. 110 1/2, par. 11a-21)
| 25 | | Sec. 11a-21. Hearing. (a) The court shall conduct a hearing |
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| 1 | | on a petition
filed under Section 11a-20. The ward is entitled | 2 | | to be represented by counsel,
to demand a jury of 6 persons, to | 3 | | present evidence and to confront and cross-examine
all | 4 | | witnesses. The court (1) may appoint counsel for the ward, if | 5 | | the court
finds that the interests of the ward will be best | 6 | | served by the appointment
and (2) shall appoint counsel upon | 7 | | the ward's request or if the respondent
takes a position | 8 | | adverse to that of the guardian ad litem. The court may
allow | 9 | | the guardian ad litem and counsel for the ward reasonable | 10 | | compensation.
| 11 | | (b) If the ward is unable to pay the fee of the guardian ad | 12 | | litem or appointed
counsel, or both, the court shall enter an | 13 | | order upon the State to pay,
from funds appropriated by the | 14 | | General Assembly for that purpose, all such
fees or such | 15 | | amounts as the ward is unable to pay.
| 16 | | (c) Upon conclusion of the hearing, the court shall enter | 17 | | an order setting
forth the factual basis for its findings and | 18 | | may: (1) dismiss the petition;
(2) terminate the adjudication | 19 | | of disability; (3) revoke the letters of
guardianship of the | 20 | | estate or person, or both; (4) modify the duties of
the | 21 | | guardian; and (5) require the guardian to complete a training | 22 | | program as provided in subdivision (a)(6) of Section 11a-5 of | 23 | | this Act; and (6) make any other order which the court deems | 24 | | appropriate
and in the interests of the ward.
| 25 | | (Source: P.A. 81-1509.)
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| 1 | | Section 99. Effective date. This Act takes effect one year | 2 | | after becoming law.".
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