Full Text of HB0370 102nd General Assembly
HB0370eng 102ND GENERAL ASSEMBLY |
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| 1 | | AN ACT concerning civil law.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Probate Act of 1975 is amended by changing | 5 | | Section 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 | 9 | | guardian or on
its own motion, the court may appoint a guardian | 10 | | of the estate or of both the
person and estate, of a minor, or | 11 | | may appoint a guardian of the person only of
a minor or minors, | 12 | | as the court finds to be in the best interest of the minor
or | 13 | | minors.
| 14 | | (a-1) A parent, adoptive parent or adjudicated parent, | 15 | | whose parental rights
have not been terminated, may designate | 16 | | in any writing, including a will, a
person qualified to act | 17 | | under Section 11-3 to be appointed as guardian of
the person or | 18 | | estate, or both, of an unmarried minor or of a child likely to | 19 | | be
born. A parent, adoptive parent or adjudicated parent, | 20 | | whose parental rights
have not been terminated, or a guardian | 21 | | or a standby guardian of an unmarried
minor or of a child | 22 | | likely to be born may designate in any writing, including a
| 23 | | will, a person qualified to act under Section 11-3 to be |
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| 1 | | appointed as successor
guardian of the minor's person or | 2 | | estate, or both. The designation must be
witnessed by 2 or more | 3 | | credible witnesses at least 18 years of age, neither of
whom is | 4 | | the person designated as the guardian. The designation may be | 5 | | proved
by any competent evidence. If the designation is | 6 | | executed and attested in the
same manner as a will, it shall | 7 | | have prima facie validity. The designation of a
guardian or | 8 | | successor guardian does not affect the rights of the other | 9 | | parent
in the minor.
| 10 | | (b) The court lacks jurisdiction to proceed on a petition | 11 | | for the
appointment of a guardian of a minor if it finds that | 12 | | (i) the minor has a living parent,
adoptive parent or | 13 | | adjudicated parent, whose parental rights have not been
| 14 | | terminated, whose whereabouts are known, and who is willing | 15 | | and able to make
and carry out day-to-day child care decisions | 16 | | concerning the minor, unless: (1) the
parent or parents | 17 | | voluntarily relinquished physical custody of the minor; (2) | 18 | | after receiving notice of the
hearing under Section 11-10.1, | 19 | | the parent or parents fail to object to the appointment at the
| 20 | | hearing on the petition; (3) the parent or parents consent to | 21 | | the appointment as evidenced by a written document that has | 22 | | been notarized and dated, or by a personal appearance and | 23 | | consent in open court; or (4) the parent or parents, due to an | 24 | | administrative separation, are unable to give consent to the | 25 | | appointment in person or by a notarized, written document as | 26 | | evidenced by a sworn affidavit submitted by the petitioner |
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| 1 | | describing the parent's or parents' inability to receive | 2 | | notice or give consent; or (ii) there is a guardian for the | 3 | | minor appointed by
a court of competent jurisdiction. There | 4 | | shall be a rebuttable presumption
that a parent of a minor is | 5 | | willing and able to make and carry out
day-to-day child care | 6 | | decisions concerning the minor, but the presumption may
be | 7 | | rebutted by a preponderance of the evidence. If a short-term | 8 | | guardian has been appointed for the minor prior to the filing | 9 | | of the petition and the petitioner for guardianship is not the | 10 | | short-term guardian, there shall be a rebuttable presumption | 11 | | that it is in the best interest of the minor to remain in the | 12 | | care of the short-term guardian. The petitioner shall have the | 13 | | burden of proving by a preponderance of the evidence that it is | 14 | | not in the child's best interest to remain with the short-term | 15 | | guardian.
| 16 | | (b-1) If the court finds the appointment of a guardian of | 17 | | the minor to be
in the best interest of the minor, and if a | 18 | | standby guardian has previously
been appointed for the minor | 19 | | under Section 11-5.3, the court shall appoint the
standby | 20 | | guardian as the guardian of the person or estate, or both, of | 21 | | the minor
unless the court finds, upon good cause shown, that | 22 | | the appointment would no
longer be in the best interest of the | 23 | | minor.
| 24 | | (b-2) No petition for the appointment of a guardian of a | 25 | | minor shall be filed in which the primary purpose of the filing | 26 | | is to reduce the financial resources available to the minor in |
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| 1 | | order to cause the minor to qualify for public or private | 2 | | financial assistance from an educational institution. The | 3 | | court may deny the petition if it finds by a preponderance of | 4 | | the evidence that the primary purpose of the filing is to | 5 | | enable the minor to declare financial independence so that the | 6 | | minor may obtain public or private financial assistance from | 7 | | an educational institution or a State or federal student | 8 | | financial aid program. | 9 | | (c) If the minor is 14 years of age or more, the minor may | 10 | | nominate the
guardian of the minor's person and estate, | 11 | | subject to approval of the court. If
the minor's nominee is not | 12 | | approved by the court or if, after notice to the minor, the | 13 | | minor fails to nominate a
guardian of the minor's person or | 14 | | estate, the court may appoint the guardian
without nomination.
| 15 | | (d) The court shall not appoint as guardian of the person | 16 | | of the minor any
person whom the court has determined had | 17 | | caused or substantially contributed to
the minor becoming a | 18 | | neglected or abused minor as defined in the Juvenile Court
Act | 19 | | of 1987, unless 2 years have elapsed since the last proven | 20 | | incident of abuse
or neglect and the court determines that | 21 | | appointment of such person as guardian
is in the best | 22 | | interests of the minor.
| 23 | | (e) Previous statements made by the minor relating to any | 24 | | allegations
that the minor is an abused or neglected child | 25 | | within the meaning of the
Abused and Neglected Child Reporting | 26 | | Act, or an abused or neglected minor
within the meaning of the |
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| 1 | | Juvenile Court Act of 1987, shall be admissible
in evidence in | 2 | | a hearing concerning appointment of a guardian of the person
| 3 | | or estate of the minor. No such statement, however, if | 4 | | uncorroborated and
not subject to cross-examination, shall be | 5 | | sufficient in itself to support
a finding of abuse or neglect.
| 6 | | (Source: P.A. 101-120, eff. 7-23-19.)
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