Full Text of SB2547 97th General Assembly
SB2547 97TH GENERAL ASSEMBLY |
| | 97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012 SB2547 Introduced 1/11/2012, by Sen. Ira I. Silverstein SYNOPSIS AS INTRODUCED: |
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Amends the Illinois Marriage and Dissolution of Marriage Act. Provides procedures and standards for a guardian to initiate a dissolution of marriage or to not contest a dissolution of marriage.
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| | A BILL FOR |
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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 adding | 5 | | Section 11a-17.2 as follows: | 6 | | (755 ILCS 5/11a-17.2 new) | 7 | | Sec. 11a-17.2. Initiating dissolution proceedings for | 8 | | ward. | 9 | | (a) A guardian of the person shall not consent to the | 10 | | initiation of a dissolution proceeding on behalf of a married | 11 | | ward without first obtaining an order from the court granting | 12 | | the guardian the authority to provide consent. | 13 | | (b) A guardian seeking authority to consent to the | 14 | | initiation of a dissolution of the marriage of the ward shall | 15 | | seek such authority by filing a verified motion. The verified | 16 | | motion shall allege facts which demonstrate that the proposed | 17 | | dissolution is warranted under subsection (f), (g), or (h) of | 18 | | this Section. The guardian ad litem will notify the ward of the | 19 | | motion in the manner set forth in subsection (c) of this | 20 | | Section. | 21 | | (c) Upon the filing of a verified motion for authority to | 22 | | initiate a dissolution of the marriage of a ward, the court | 23 | | shall appoint a guardian ad litem to report to the court |
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| 1 | | consistent with the provisions of this Section. If the guardian | 2 | | ad litem is not a licensed attorney, he or she shall be | 3 | | qualified, by training or experience, to work with or advocate | 4 | | for persons with a developmental disability, mental illness, | 5 | | physical disability, or disability because of mental | 6 | | deterioration, depending on the type of disability of the ward | 7 | | that is alleged in the motion. The court may allow the guardian | 8 | | ad litem reasonable
compensation. The guardian ad litem may | 9 | | consult with a person who by training or experience is | 10 | | qualified to work with persons with a developmental disability, | 11 | | mental illness, physical disability, or disability because of | 12 | | mental deterioration, depending on the type of disability of | 13 | | the ward that is alleged. The guardian ad litem may also
| 14 | | consult with health care providers knowledgeable about the | 15 | | traumatic or psychological effects of dissolution on an | 16 | | individual, particularly a disabled individual. Outside the | 17 | | presence of the guardian, the guardian ad litem shall | 18 | | personally observe the ward
prior to the hearing and shall | 19 | | inform the ward orally and in writing of the contents of the | 20 | | verified motion for authority to consent to initiation of a | 21 | | dissolution proceeding. Outside the presence of the guardian, | 22 | | the guardian ad litem shall also attempt to elicit the ward's
| 23 | | position concerning the motion, and any other areas of inquiry | 24 | | deemed appropriate by the court. At or before the hearing, the | 25 | | guardian ad litem shall file a written report detailing his or | 26 | | her observations of the ward; the responses of the ward to any |
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| 1 | | of the inquiries detailed in this Section; the opinion of the | 2 | | guardian ad litem and any other professionals with whom the | 3 | | guardian ad litem consulted concerning the ward's | 4 | | understanding of and desire for or objection to, as well as | 5 | | what is in the ward's best interest relative to,
dissolution; | 6 | | and any other material issue discovered by the guardian ad | 7 | | litem. The guardian ad litem shall appear at the hearing and | 8 | | testify, and may present witnesses, as to any issues presented | 9 | | in his or her report. | 10 | | (d) The court (1) may appoint counsel for the ward if the | 11 | | court finds that the interests of the ward will be best served | 12 | | by the appointment, and (2) shall appoint counsel upon the | 13 | | ward's request, if the ward is objecting to the proposed | 14 | | dissolution or if the ward takes a position adverse to that of | 15 | | the guardian ad litem. The ward shall be permitted to obtain | 16 | | the appointment of counsel either at the hearing or by any | 17 | | written or oral request communicated to the court prior to the | 18 | | hearing. The court shall inform the ward of this right to | 19 | | obtain appointed counsel. The court may allow counsel for the | 20 | | ward
reasonable compensation. | 21 | | (e) The court may order a medical and psychological | 22 | | evaluation of the ward. The evaluation shall address the ward's | 23 | | decision making capacity with respect to the proposed | 24 | | dissolution, the existence of any less permanent alternatives, | 25 | | and any other material issue. | 26 | | (f) The court shall determine, as a threshold inquiry, |
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| 1 | | whether the ward has capacity to consent or withhold consent to | 2 | | the proposed dissolution and, if the ward lacks such capacity, | 3 | | whether the ward is likely to regain such capacity. The ward | 4 | | shall not be deemed to lack such capacity solely on the basis | 5 | | of the adjudication of disability and
appointment of a | 6 | | guardian. If the court finds that (1) the ward has capacity to | 7 | | consent or withhold consent to the proposed dissolution and (2) | 8 | | the ward objects or consents to the legal proceeding the court | 9 | | shall enter an order consistent with the ward's objection or | 10 | | consent and the proceedings on the verified motion shall be | 11 | | terminated. | 12 | | (g) If the court finds that the ward does not have capacity | 13 | | to consent or withhold consent to the proposed dissolution and | 14 | | is unlikely to regain such capacity, the court shall determine | 15 | | whether the ward is expressing a clear desire for the proposed | 16 | | divorce. If the ward is expressing a clear desire for the | 17 | | proposed divorce, the court's decision regarding the proposed | 18 | | divorce shall be made in accordance with the standards set | 19 | | forth in subsection (e) of Section 11a-17 of this Act. | 20 | | (h) If the court finds that the ward does not have capacity | 21 | | to consent or withhold consent to the proposed dissolution and | 22 | | is unlikely to regain such capacity, and that the ward is not | 23 | | expressing a clear desire for the proposed dissolution the | 24 | | court shall consider the standards set forth in subsection (e) | 25 | | of Section 11a-17 of this Act and enter written findings of | 26 | | fact and conclusions of law addressing those standards. In |
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| 1 | | addition, the court shall not authorize the guardian to consent | 2 | | to the proposed initiation of a dissolution of
marriage | 3 | | proceeding unless the court finds, by clear and convincing | 4 | | evidence and based on written findings of fact and conclusions | 5 | | of law, that all of the following factors are present: | 6 | | (1) The ward lacks decisional capacity regarding the | 7 | | proposed dissolution. | 8 | | (2) The benefits to the ward of the proposed | 9 | | dissolution outweigh the harm. | 10 | | (3) The court has considered less intrusive | 11 | | alternatives and found them to be inadequate in this case. | 12 | | (4) The proposed dissolution is in the best interest of | 13 | | the ward, taking into consideration the possibility that | 14 | | the ward will experience trauma or psychological damage if | 15 | | she is divorced, or conversely, the possibility of trauma | 16 | | or psychological damage if she remains married.
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