Full Text of SB0195 103rd General Assembly
SB0195ham001 103RD GENERAL ASSEMBLY | Rep. Jennifer Gong-Gershowitz Filed: 4/20/2023
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| 1 | | AMENDMENT TO SENATE BILL 195
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 195 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 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 |
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| 1 | | under Section 11-3 to be appointed as guardian of
the person or | 2 | | estate, or both, of an unmarried minor or of a child likely to | 3 | | be
born. A parent, adoptive parent or adjudicated parent, | 4 | | whose parental rights
have not been terminated, or a guardian | 5 | | or a standby guardian of an unmarried
minor or of a child | 6 | | likely to be born may designate in any writing, including a
| 7 | | will, a person qualified to act under Section 11-3 to be | 8 | | appointed as successor
guardian of the minor's person or | 9 | | estate, or both. The designation must be
witnessed by 2 or more | 10 | | credible witnesses at least 18 years of age, neither of
whom is | 11 | | the person designated as the guardian. The designation may be | 12 | | proved
by any competent evidence. If the designation is | 13 | | executed and attested in the
same manner as a will, it shall | 14 | | have prima facie validity. The designation of a
guardian or | 15 | | successor guardian does not affect the rights of the other | 16 | | parent
in the minor.
| 17 | | (b) The court lacks jurisdiction to proceed on a petition | 18 | | for the
appointment of a guardian of a minor if it finds that | 19 | | (i) the minor has a living parent,
adoptive parent or | 20 | | adjudicated parent, whose parental rights have not been
| 21 | | terminated, whose whereabouts are known, and who is willing | 22 | | and able to make
and carry out day-to-day child care decisions | 23 | | concerning the minor, unless: (1) the
parent or parents | 24 | | voluntarily relinquished physical custody of the minor; (2) | 25 | | after receiving notice of the
hearing under Section 11-10.1, | 26 | | the parent or parents fail to object to the appointment at the
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| 1 | | hearing on the petition; (3) the parent or parents consent to | 2 | | the appointment as evidenced by a written document that has | 3 | | been notarized and dated, or by a personal appearance and | 4 | | consent in open court; or (4) the parent or parents, due to an | 5 | | administrative separation, are unable to give consent to the | 6 | | appointment in person or by a notarized, written document as | 7 | | evidenced by a sworn affidavit submitted by the petitioner | 8 | | describing the parent's or parents' inability to receive | 9 | | notice or give consent; or (ii) there is a guardian for the | 10 | | minor appointed by
a court of competent jurisdiction. There | 11 | | shall be a rebuttable presumption
that a parent of a minor is | 12 | | willing and able to make and carry out
day-to-day child care | 13 | | decisions concerning the minor, but the presumption may
be | 14 | | rebutted by a preponderance of the evidence. If a short-term | 15 | | guardian has been appointed for the minor prior to the filing | 16 | | of the petition and the petitioner for guardianship is not the | 17 | | short-term guardian, there shall be a rebuttable presumption | 18 | | that it is in the best interest of the minor to remain in the | 19 | | care of the short-term guardian. The petitioner shall have the | 20 | | burden of proving by a preponderance of the evidence that it is | 21 | | not in the child's best interest to remain with the short-term | 22 | | guardian.
| 23 | | (b-1) If the court finds the appointment of a guardian of | 24 | | the minor to be
in the best interest of the minor, and if a | 25 | | standby guardian has previously
been appointed for the minor | 26 | | under Section 11-5.3, the court shall appoint the
standby |
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| 1 | | guardian as the guardian of the person or estate, or both, of | 2 | | the minor
unless the court finds, upon good cause shown, that | 3 | | the appointment would no
longer be in the best interest of the | 4 | | minor.
| 5 | | (b-2) No petition for the appointment of a guardian of a | 6 | | minor shall be filed if the primary purpose of the filing is to | 7 | | reduce the financial resources available to the minor in order | 8 | | to cause the minor to qualify for public or private financial | 9 | | assistance from an educational institution. The court may deny | 10 | | the petition if it finds by a preponderance of the evidence | 11 | | that the primary purpose of the filing is to enable the minor | 12 | | to declare financial independence so that the minor may obtain | 13 | | public or private financial assistance from an educational | 14 | | institution or a State or federal student financial aid | 15 | | program. | 16 | | (c) If the minor is 14 years of age or more, the minor may | 17 | | nominate the
guardian of the minor's person and estate, | 18 | | subject to approval of the court. If
the minor's nominee is not | 19 | | approved by the court or if, after notice to the minor, the | 20 | | minor fails to nominate a
guardian of the minor's person or | 21 | | estate, the court may appoint the guardian
without nomination.
| 22 | | (d) The court shall not appoint as guardian of the person | 23 | | of the minor any
person whom the court has determined had | 24 | | caused or substantially contributed to
the minor becoming a | 25 | | neglected or abused minor as defined in the Juvenile Court
Act | 26 | | of 1987, unless 2 years have elapsed since the last proven |
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| 1 | | incident of abuse
or neglect and the court determines that | 2 | | appointment of such person as guardian
is in the best | 3 | | interests of the minor.
| 4 | | (e) Previous statements made by the minor relating to any | 5 | | allegations
that the minor is an abused or neglected child | 6 | | within the meaning of the
Abused and Neglected Child Reporting | 7 | | Act, or an abused or neglected minor
within the meaning of the | 8 | | Juvenile Court Act of 1987, shall be admissible
in evidence in | 9 | | a hearing concerning appointment of a guardian of the person
| 10 | | or estate of the minor. No such statement, however, if | 11 | | uncorroborated and
not subject to cross-examination, shall be | 12 | | sufficient in itself to support
a finding of abuse or neglect.
| 13 | | (Source: P.A. 101-120, eff. 7-23-19.)
| 14 | | Section 10. The Educational Planning Services Consumer | 15 | | Protection Act is amended by changing Sections 10, 15, 20, 25, | 16 | | 30, 40, and 90 as follows: | 17 | | (815 ILCS 616/10)
| 18 | | Sec. 10. Purpose and construction. The purpose of this Act | 19 | | is to protect consumers who enter into agreements with | 20 | | educational planning service providers and to regulate | 21 | | educational planning service providers . This Act shall be | 22 | | construed as a consumer protection law for all purposes. This | 23 | | Act shall be liberally construed to effectuate its purpose.
| 24 | | (Source: P.A. 102-571, eff. 1-1-22 .) |
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| 1 | | (815 ILCS 616/15)
| 2 | | Sec. 15. Definitions. As used in this Act: | 3 | | "Consumer" means any person who purchases or contracts for | 4 | | the purchase of educational planning services. | 5 | | "Educational planning services" means college and career | 6 | | preparatory planning services, including, but not limited to, | 7 | | advice regarding and assistance with college and career | 8 | | searches; college application preparation or submission; | 9 | | financial aid application planning, preparation, or | 10 | | submission; and scholarship searches and applications. | 11 | | "Educational planning service provider" means any person | 12 | | or entity engaging in or holding itself out as engaging in the | 13 | | business of providing educational planning services in | 14 | | exchange for any fee or compensation , or any person who | 15 | | solicits or acts on behalf of any person or entity engaging in | 16 | | or holding itself out as engaging in the business of providing | 17 | | educational planning services in exchange for any fee or | 18 | | compensation. "Educational planning service provider" does not | 19 | | include any of the following: | 20 | | (1) An A not-for-profit or public institution of | 21 | | higher learning, as defined in the Higher Education | 22 | | Student Assistance Act, and the individuals employed by | 23 | | that institution where educational planning services are | 24 | | provided as part of the financial aid or career counseling | 25 | | services offered by the institution. |
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| 1 | | (2) Public entities and their officers while acting in | 2 | | their official capacities. | 3 | | (3) Persons acting on behalf of a consumer under court | 4 | | order or as a legal representative. | 5 | | "Enrollment fee" or "set up fee" means any fee, | 6 | | obligation, or compensation paid or to be paid by the consumer | 7 | | to an educational planning service provider in consideration | 8 | | of or in connection with establishing a contract or other | 9 | | agreement with a consumer related to the provision of | 10 | | educational planning services. | 11 | | "Maintenance fee" means any fee, obligation, or | 12 | | compensation paid or to be paid by the consumer on a periodic | 13 | | basis to an educational planning service provider in | 14 | | consideration for maintaining the relationship and services to | 15 | | be provided by the educational planning service provider in | 16 | | accordance with a contract with a consumer related to the | 17 | | provision of educational planning services.
| 18 | | (Source: P.A. 102-571, eff. 1-1-22 .) | 19 | | (815 ILCS 616/20)
| 20 | | Sec. 20. Prohibitions and requirements. | 21 | | (a) It shall be unlawful for any person or entity to act as | 22 | | an educational planning service provider unless it remains in | 23 | | compliance with except as authorized by this Act. | 24 | | (b) An educational planning service provider may not | 25 | | provide educational planning services to a consumer for a fee |
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| 1 | | without a written contract signed and dated by both the | 2 | | consumer and the educational planning service provider. A | 3 | | contract between an educational planning service provider and | 4 | | a consumer for the provision of educational planning services | 5 | | shall disclose clearly and conspicuously all of the following: | 6 | | (1) The name and address of the consumer. | 7 | | (2) The date of execution of the contract. | 8 | | (3) The legal name of the educational planning service | 9 | | provider, including any other business names used by the | 10 | | educational planning service provider. | 11 | | (4) The corporate address and regular business | 12 | | address, including a street address, of the educational | 13 | | planning service provider. | 14 | | (5) The telephone number at which the consumer may | 15 | | speak with a representative of the educational planning | 16 | | service provider during normal business hours. | 17 | | (6) A description of the services and an itemized list | 18 | | of all fees to be paid by the consumer for each service and | 19 | | the date, approximate date, or circumstances under which | 20 | | each fee will become due. | 21 | | (7) The contents of the Consumer Notice and Rights | 22 | | Form provided in Section 25 of this Act. | 23 | | (8) A written notice to the consumer that the consumer | 24 | | may cancel the contract at any time until after the | 25 | | educational planning service provider has fully performed | 26 | | each service the educational planning service provider |
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| 1 | | contracted to perform or represented he or she would | 2 | | perform and that the consumer may not be required to pay | 3 | | for services the consumer did not receive and shall be | 4 | | entitled to a full refund of any fees paid for educational | 5 | | planning services not provided. | 6 | | (9) A form the consumer may use to cancel the contract | 7 | | pursuant to this Act. The form shall include the name and | 8 | | mailing address of the educational planning service | 9 | | provider and shall disclose clearly and conspicuously how | 10 | | the consumer can cancel the contract, including applicable | 11 | | addresses, telephone numbers, facsimile numbers, and | 12 | | electronic mail addresses the consumer can use to cancel | 13 | | the contract. Notwithstanding any other provision of this | 14 | | paragraph (9) to the contrary, a consumer's lack of strict | 15 | | adherence to an educational planning service provider's | 16 | | cancellation form or processes does not invalidate a | 17 | | consumer's good faith and reasonable method or form of | 18 | | cancellation. | 19 | | (c) If an educational planning service provider | 20 | | communicates with a consumer primarily in a language other | 21 | | than English, then the educational planning service provider | 22 | | shall furnish to the consumer a translation of all the | 23 | | disclosures and documents required by this Act, including, but | 24 | | not limited to, the contract, in that other language. | 25 | | (d) An educational planning service provider may not | 26 | | charge or receive from a consumer any enrollment fee, set up |
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| 1 | | fee, up-front fee of any kind, or maintenance fee, and a | 2 | | consumer shall pay only for the educational planning services | 3 | | provided. | 4 | | (e) An educational planning service provider may not do | 5 | | any of the following: | 6 | | (1) Represent, expressly or by implication, any | 7 | | results or outcomes of its educational planning services | 8 | | in any advertising, marketing, or other communication to | 9 | | consumers unless the educational planning service provider | 10 | | possesses substantiation for such representation at the | 11 | | time such representation is made. | 12 | | (2) Expressly or by implication, make any unfair or | 13 | | deceptive representations or any omissions of material | 14 | | facts in any of its advertising or marketing | 15 | | communications concerning educational planning services. | 16 | | (3) Advertise or market educational planning services, | 17 | | enter into a contract for educational planning services, | 18 | | or provide educational planning services without making | 19 | | the disclosures required in this Act at the times and in | 20 | | the form and manner as described in this Act. | 21 | | (4) Advise about or represent, expressly or by | 22 | | implication, any unlawful services to be provided or fees | 23 | | to be collected by the educational planning service | 24 | | provider. | 25 | | (5) Advise or represent, expressly or by implication, | 26 | | that consumers pay any fees that are unearned by the |
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| 1 | | educational planning service provider. | 2 | | (6) Advise, encourage, or represent, expressly or by | 3 | | implication, that a consumer provide false or misleading | 4 | | information about financial or other circumstances to gain | 5 | | admission into a higher education institution or to be | 6 | | eligible for student financial aid, including, but not | 7 | | limited to, advising a consumer to petition for the | 8 | | appointment of a guardian for a minor for the primary | 9 | | purpose of reducing the financial resources available to | 10 | | the minor in order to cause the minor to qualify for public | 11 | | or private financial aid.
| 12 | | (Source: P.A. 102-571, eff. 1-1-22 .) | 13 | | (815 ILCS 616/25)
| 14 | | Sec. 25. Required disclosures. | 15 | | (a) In any marketing or advertising communications, an | 16 | | education planning service provider must provide the following | 17 | | disclosure verbatim, both orally and in writing, with the | 18 | | caption: | 19 | | CONSUMER NOTICE OF AVAILABILITY | 20 | | OF FREE THESE SERVICES FOR FREE | 21 | | General educational Educational planning services may | 22 | | be available of this type are provided free of charge from | 23 | | at no cost to you by the Illinois Student Assistance | 24 | | Commission and may also be offered by other public or |
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| 1 | | not-for-profit entities, such as a public library or an | 2 | | institution of higher learning. | 3 | | (b) An educational planning service provider must provide | 4 | | the following warning verbatim, both orally and in writing, | 5 | | with the caption "CONSUMER NOTICE AND RIGHTS FORM" in at least | 6 | | 18-point 28-point font and the remaining portion in at least | 7 | | 12-point 14-point font, to a consumer before the consumer | 8 | | signs a contract for the educational planning service | 9 | | provider's services: | 10 | | CONSUMER NOTICE AND RIGHTS FORM | 11 | | AVAILABILITY OF FREE THESE SERVICES FOR FREE | 12 | | General educational Educational planning services may | 13 | | be available of this type are provided free of charge from | 14 | | at no cost to you by the Illinois Student Assistance | 15 | | Commission and may be offered by other public or | 16 | | not-for-profit entities, such as a public library or an | 17 | | institution of higher learning. | 18 | | YOUR RIGHT TO CANCEL | 19 | | If you sign a contract with an educational planning | 20 | | service provider, you have the right to cancel at any time | 21 | | and receive a full refund of all unearned fees you have | 22 | | paid to the provider. You will not be responsible for |
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| 1 | | payment of services that are not fully performed. | 2 | | IF YOU ARE DISSATISFIED OR YOU HAVE QUESTIONS | 3 | | If you are dissatisfied with an educational planning | 4 | | service provider or have any questions, please bring it to | 5 | | the attention of the Illinois Attorney General's Office. | 6 | | (c) The educational planning service provider must | 7 | | maintain proof that it has provided to the consumer the | 8 | | Consumer Notice and Rights Form in accordance with subsection | 9 | | (b) of this Section. | 10 | | (d) The consumer shall sign and date an acknowledgment | 11 | | form titled "Consumer Notice and Rights Form" that states: "I, | 12 | | the consumer, have received from the educational planning | 13 | | service provider a copy of the form titled "Consumer Notice | 14 | | and Rights Form," and I have been provided the Illinois | 15 | | Student Assistance Commission's Internet website address where | 16 | | I can obtain general educational planning services are | 17 | | provided free of charge.". The educational planning service | 18 | | provider or its representative shall also sign and date the | 19 | | acknowledgment form, which shall include the name and address | 20 | | of the educational planning service provider. The | 21 | | acknowledgment form shall be in duplicate and shall be | 22 | | incorporated into the Consumer Notice and Rights Form under | 23 | | subsection (b) of this Section. The original acknowledgment | 24 | | form shall be retained by the educational planning service |
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| 1 | | provider, and the duplicate copy shall be retained by the | 2 | | consumer. | 3 | | (e) If the acknowledgment form under subsection (d) of | 4 | | this Section is in an electronic format, then, in addition to | 5 | | the other requirements of this Act, the acknowledgment form | 6 | | shall: | 7 | | (1) contain a live link to the Illinois Student | 8 | | Assistance Commission's Internet website where general | 9 | | educational planning services may be available are offered | 10 | | free of charge; and | 11 | | (2) be digitally signed by the consumer in compliance | 12 | | with the provisions of the federal Electronic Signatures | 13 | | in Global and National Commerce Act concerning consumer | 14 | | disclosures, including subsection (c) of Section 101 of | 15 | | that Act.
| 16 | | (Source: P.A. 102-571, eff. 1-1-22 .) | 17 | | (815 ILCS 616/30)
| 18 | | Sec. 30. Cancellation of contract; refund. | 19 | | (a) A consumer may cancel a contract with an educational | 20 | | planning service provider at any time before the educational | 21 | | planning service provider has fully performed each service the | 22 | | educational planning service provider contracted to perform or | 23 | | represented it would perform. | 24 | | (b) If a consumer cancels a contract with an educational | 25 | | planning service provider, then the educational planning |
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| 1 | | service provider shall refund all fees and compensation, with | 2 | | the exception of any earned fees for services provided. | 3 | | (c) At any time upon a material violation of this Act on | 4 | | the part of the educational planning service provider, the | 5 | | educational planning service provider shall refund all fees | 6 | | and compensation to the consumer. | 7 | | (d) An educational planning service provider shall make | 8 | | any refund required under this Act within 5 business days | 9 | | after the notice of cancellation or voiding of the contract | 10 | | due to a violation of this Act and shall include with the | 11 | | refund a full statement of account showing fees received and | 12 | | fees refunded. | 13 | | (e) Upon cancellation or voiding of the contract, all | 14 | | direct debit authorizations granted to the educational | 15 | | planning service provider by the consumer shall be considered | 16 | | revoked and voided. | 17 | | (f) Upon the termination of the contract for any reason, | 18 | | the educational planning service provider shall provide a | 19 | | timely and accurate response to any postsecondary institution, | 20 | | agency, or other entity that contacts the provider in | 21 | | reference to the consumer, indicating that the provider notice | 22 | | that it no longer represents the consumer to any entity or | 23 | | agency with whom the educational planning service provider has | 24 | | had any prior communication on behalf of the consumer in | 25 | | connection with the provision of any educational planning | 26 | | services .
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| 1 | | (Source: P.A. 102-571, eff. 1-1-22 .) | 2 | | (815 ILCS 616/40)
| 3 | | Sec. 40. Civil remedies; injunction. | 4 | | (a) A material violation of this Act constitutes an | 5 | | unlawful practice under the Consumer Fraud and Deceptive | 6 | | Business Practices Act. All remedies, penalties, and authority | 7 | | granted to the Attorney General or State's Attorney by the | 8 | | Consumer Fraud and Deceptive Business Practices Act shall be | 9 | | available to him or her for the enforcement of this Act. | 10 | | (b) A consumer who suffers loss by reason of a material | 11 | | violation of this Act may bring a civil action in accordance | 12 | | with the Consumer Fraud and Deceptive Business Practices Act | 13 | | to enforce a provision of this Act. All remedies and rights | 14 | | granted to a consumer by the Consumer Fraud and Deceptive | 15 | | Business Practices Act shall be available to the consumer | 16 | | bringing such an action. The remedies and rights provided for | 17 | | in this Act are not exclusive, but cumulative, and all other | 18 | | applicable claims are specifically preserved. | 19 | | (c) Any contract for educational planning services made in | 20 | | material violation of this Act shall be null and void and of no | 21 | | legal effect. | 22 | | (d) To engage in educational planning services in | 23 | | violation of this Act is declared to be inimical to the public | 24 | | welfare and to constitute a public nuisance. The Illinois | 25 | | Student Assistance Commission may, in the name of the people |
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| 1 | | of the State of Illinois, through the Attorney General, file a | 2 | | complaint for an injunction in the circuit court to enjoin | 3 | | such person from engaging in that unlawful business. An | 4 | | injunction proceeding shall be in addition to and not in lieu | 5 | | of penalties and remedies otherwise provided in this Act.
| 6 | | (Source: P.A. 102-571, eff. 1-1-22 .) | 7 | | (815 ILCS 616/90)
| 8 | | Sec. 90. Rules. The Illinois Student Assistance Commission | 9 | | shall adopt and enforce all reasonable rules necessary or | 10 | | appropriate for the administration of this Act.
| 11 | | (Source: P.A. 102-571, eff. 1-1-22 .)".
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