Full Text of SB2894 97th General Assembly
SB2894 97TH GENERAL ASSEMBLY |
| | 97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012 SB2894 Introduced 2/1/2012, by Sen. Ira I. Silverstein SYNOPSIS AS INTRODUCED: |
| |
Amends the Guardianship and Advocacy Act. Provides that, in a case in which a court appoints the State Guardian, the court shall indicate in the order the reasons that the State Guardian appointment, rather than the appointment of another interested party, is required. Provides that the State Guardian shall not be appointed as guardian for a person whose primary diagnosis is mental illness. Provides that each ward of the State Guardian who was adjudicated disabled before the effective date of this amendatory Act and has a primary diagnosis of mental illness shall be the subject of a review hearing and shall be considered eligible for restoration of rights unless evidence demonstrates, by a clear and convincing standard, that guardianship is still required for the ward and that the State Guardian is the only available and suitable guardian. Amends the Clerks of Courts Act to authorize guardianship and advocacy operation fees. Exempts certain parties from these fees. Makes other changes. Amends the Probate Act of 1975. Provides that an order appointing a guardian shall implement the least restrictive alternative, maximize the disabled person's autonomy, and exercise authority over the disabled person only as necessary. Provides that in counties having a population of 1,000,000 or less, in which there is no currently serving public guardian or in which there is a public guardian serving under an expired term of office, the Governor shall, within 90 days after the effective date of this amendatory Act, appoint the Office of State guardian the public guardian. Subsequently, in counties having a population of 1,000,000 or less and upon the expiration of the public guardian's term, the State guardian shall be appointed the public guardian.
|
| |
| | | FISCAL NOTE ACT MAY APPLY | |
| | A BILL FOR |
|
| | | SB2894 | | LRB097 17188 JLS 62388 b |
|
| 1 | | AN ACT concerning guardians.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Guardianship and Advocacy Act is amended by | 5 | | changing Sections 31 and 32 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 | 17 | | reasons that the State Guardian appointment, rather than the | 18 | | appointment of another interested party, is required. This | 19 | | requirement shall be waived where the Office of State
Guardian | 20 | | petitions for its own appointment as guardian.
| 21 | | (Source: P.A. 89-396, eff. 8-20-95.)
| 22 | | (20 ILCS 3955/32) (from Ch. 91 1/2, par. 732)
|
| | | SB2894 | - 2 - | LRB097 17188 JLS 62388 b |
|
| 1 | | Sec. 32. Powers and duties of State Guardian; service | 2 | | limitation; review hearings. | 3 | | (a) The State Guardian shall have the same powers and | 4 | | duties as
a private guardian as provided in Article XIa of the | 5 | | Probate Act of 1975,
approved August 7, 1975. The State | 6 | | Guardian shall not provide direct residential
services to its | 7 | | wards. The State Guardian shall visit and consult with its | 8 | | wards
at least four times a year for as long as the | 9 | | guardianship continues. On and after the effective date of this | 10 | | amendatory Act of the 97th General Assembly, the State Guardian | 11 | | shall not be appointed as guardian for a person whose primary | 12 | | diagnosis is mental illness within the meaning of Section 11a-2 | 13 | | of the Probate Act of 1975. | 14 | | (b) Each ward of the State Guardian who was adjudicated | 15 | | disabled before the effective date of this amendatory Act of | 16 | | the 97th General Assembly and has a primary diagnosis of mental | 17 | | illness shall be the subject of a review hearing in either the | 18 | | county in which the case was established or in which the ward | 19 | | now resides. The court shall appoint a guardian ad litem or | 20 | | advocate to represent the interests of the ward at this | 21 | | hearing, and the State Guardian shall be the petitioner. As | 22 | | soon as practical after the effective date of this amendatory | 23 | | Act of the 97th General Assembly, the State Guardian shall | 24 | | petition under this Section. At the hearing, a ward with a | 25 | | primary diagnosis of mental illness shall be considered | 26 | | eligible for restoration of rights unless evidence |
| | | SB2894 | - 3 - | LRB097 17188 JLS 62388 b |
|
| 1 | | demonstrates, by a clear and convincing standard, that | 2 | | guardianship is still required for the ward with mental illness | 3 | | and that the State Guardian is the only available and suitable | 4 | | guardian. The court shall determine the appropriateness of | 5 | | restoration of the ward's legal rights and the termination of | 6 | | the adjudication under Section 11a-20 of the Probate Act of | 7 | | 1975. If the court determines that guardianship is still | 8 | | required, it shall consider whether another party may be | 9 | | suitable to serve as guardian. If the court continues the | 10 | | guardianship with the State Guardian, the court shall enter | 11 | | findings of fact in accordance with Section 31 of this Act. The | 12 | | court may also determine that further review under this Section | 13 | | is no longer required.
| 14 | | (Source: P.A. 80-1416.)
| 15 | | Section 10. The Clerks of Courts Act is amended by adding | 16 | | Section 27.3f as follows: | 17 | | (705 ILCS 105/27.3f new) | 18 | | Sec. 27.3f. Guardianship and advocacy operations fee. | 19 | | (a) As used in this Section, "guardianship and advocacy" | 20 | | means the guardianship and advocacy services provided by the | 21 | | Guardianship and Advocacy Commission and defined in the | 22 | | Guardianship and Advocacy Act. Viable public guardianship and | 23 | | advocacy programs, including the public guardianship programs | 24 | | created and supervised in probate proceedings in the Illinois |
| | | SB2894 | - 4 - | LRB097 17188 JLS 62388 b |
|
| 1 | | courts, are essential to the administration of justice and | 2 | | ensure that incapacitated persons and their estates are | 3 | | protected. To defray the expense of maintaining and operating | 4 | | the divisions and programs of the Guardianship and Advocacy | 5 | | Commission and to support viable guardianship and advocacy | 6 | | programs throughout Illinois, each circuit court clerk shall | 7 | | charge and collect a fee on all matters filed in probate cases | 8 | | in accordance with this Section, but no fees shall be assessed | 9 | | against the State Guardian, any public guardian, or any State's | 10 | | Attorney. | 11 | | (b) The clerk is entitled to receive the fees specified in | 12 | | this Section, which shall be paid in advance, and managed by | 13 | | the clerk as set out in paragraph (4), except that, for good | 14 | | cause shown, the court may suspend, reduce, or release the | 15 | | costs payable under this Section: | 16 | | (1) For administration of the estate of a decedent | 17 | | (whether testate or intestate) or of a ward, or of a | 18 | | missing person, a fee of $150, plus the fees specified in | 19 | | paragraph (3), except: | 20 | | (A) When the value of the real and personal | 21 | | property does not exceed $15,000, the fee shall be $40. | 22 | | (B) When (i) proof of heirship alone is made, (ii) | 23 | | a domestic or foreign will is admitted to probate | 24 | | without administration (including proof of heirship), | 25 | | or (iii) letters of office are issued for a particular | 26 | | purpose without administration of the estate, the fee |
| | | SB2894 | - 5 - | LRB097 17188 JLS 62388 b |
|
| 1 | | shall be $40. | 2 | | (C) For filing a petition to sell real estate, $50. | 3 | | (2) For administration of the estate of a ward that | 4 | | results in the appointment of the Office of State Guardian, | 5 | | the fee shall be $250, plus the fees specified in paragraph | 6 | | (3). | 7 | | (3) In addition to the fees payable under paragraphs | 8 | | (1) or (2) of this subsection (b), the following fees are | 9 | | payable: | 10 | | (A) For each account (other than one final account) | 11 | | filed in the estate of a decedent, or ward, the fee | 12 | | shall be $25. | 13 | | (B) For filing a claim in an estate when the amount | 14 | | claimed is $150 or more but less than $500, the fee | 15 | | shall be $25; when the amount claimed is $500 or more | 16 | | but less than $10,000, the fee shall be $40; when the | 17 | | amount claimed is $10,000 or more, the fee shall be | 18 | | $60; provided that the court in allowing a claim may | 19 | | add to the amount allowed the filing fee paid by the | 20 | | claimant. | 21 | | (C) For filing in an estate a claim, petition, or | 22 | | supplemental proceeding based upon an action seeking | 23 | | equitable relief including the construction or contest | 24 | | of a will, enforcement of a contract to make a will, | 25 | | and proceedings involving a testamentary trust or the | 26 | | appointment of a testamentary trustee, the fee shall be |
| | | SB2894 | - 6 - | LRB097 17188 JLS 62388 b |
|
| 1 | | $60. | 2 | | (D) For filing in an estate (i) the appearance of | 3 | | any person for the purpose of consent or (ii) the | 4 | | appearance of an executor, administrator, | 5 | | administrator to collect, guardian, guardian ad litem, | 6 | | or special administrator, no fee. | 7 | | (E) Except as provided in subparagraph (D) of this | 8 | | paragraph (3), for filing the appearance of any person | 9 | | or persons, the fee shall be $30. | 10 | | (F) For each jury demand, the fee shall be $137.50. | 11 | | (G) For disposition of the collection of a judgment | 12 | | or settlement of an action or claim for wrongful death | 13 | | of a decedent or of any cause of action of a ward, when | 14 | | there is no other administration of the estate, the fee | 15 | | shall be $50, less any amount paid under subparagraph | 16 | | (B) of paragraph (1) or subparagraph (B) of paragraph | 17 | | (3) except that if the amount involved does not exceed | 18 | | $5,000, the fee, including any amount paid under | 19 | | subparagraph (B) of paragraph (1) or subparagraph (B) | 20 | | of paragraph (3), shall be $20. | 21 | | (4) The guardianship and advocacy operations fees, as | 22 | | outlined in this Section, shall be in addition to all other | 23 | | fees and charges and assessable as costs and shall not be | 24 | | subject to disbursement under Section 27.5 or 27.6 of this | 25 | | Act. Twenty percent of the fee shall be retained by the | 26 | | clerk to defray costs of collection and 80% of the fee |
| | | SB2894 | - 7 - | LRB097 17188 JLS 62388 b |
|
| 1 | | shall be disbursed within 60 days after receipt by the | 2 | | circuit clerk to the State Treasurer for deposit by the | 3 | | State Treasurer into the Guardianship and Advocacy Fund. | 4 | | Section 15. The Probate Act of 1975 is amended by changing | 5 | | Sections 11a-12, 13-1, and 13-5 and by adding Section 13-1.3 as | 6 | | follows:
| 7 | | (755 ILCS 5/11a-12) (from Ch. 110 1/2, par. 11a-12)
| 8 | | Sec. 11a-12.
Order of appointment.)
| 9 | | (a) If basis for the
appointment of a guardian as specified | 10 | | in Section 11a-3 is not found,
the court shall dismiss the | 11 | | petition. If a basis for the appointment of a guardian is | 12 | | found, the court shall issue orders that implement the least | 13 | | restrictive alternative, maximize the alleged disabled | 14 | | person's right to self-determination and autonomy, and | 15 | | exercise authority only to the extent necessitated by the | 16 | | alleged disabled person's limitations. In determining the | 17 | | least restrictive alternative, the court shall consider | 18 | | options that allow the ward to live, learn, and work in a | 19 | | setting that places as few limits as possible on the ward's | 20 | | rights and personal freedom as appropriate to meet the needs of | 21 | | the ward.
| 22 | | (b) If the respondent is adjudged to be disabled and to | 23 | | lack some but not all of the be totally
without capacity as | 24 | | specified in Section 11a-3, and if the court finds that
limited |
| | | SB2894 | - 8 - | LRB097 17188 JLS 62388 b |
|
| 1 | | guardianship is necessary for the protection of will not | 2 | | provide sufficient protection for the disabled
person, his or | 3 | | her estate, or both, the court shall appoint a limited
plenary | 4 | | guardian of for the respondent's person or estate or both. The
| 5 | | court shall enter a written order stating
the factual basis for | 6 | | its findings and specifying the duties and powers of the | 7 | | guardian and the legal disabilities to which the respondent is | 8 | | subject . Where guardianship is found to be necessary, the court | 9 | | shall ensure that limited guardianship is strongly favored and | 10 | | that plenary guardianship is applied only as a last resort, | 11 | | consistent with subsection (c).
| 12 | | (c) If the respondent is adjudged to be disabled and to be | 13 | | totally without lack some but
not all of the capacity as | 14 | | specified in Section 11a-3, and if the court finds
that limited | 15 | | guardianship will not provide sufficient is necessary for the | 16 | | protection for of the disabled person, his
or her estate, or | 17 | | both, the court shall
appoint a plenary limited guardian for of | 18 | | the respondent's person or estate or both.
The court shall | 19 | | enter a written order stating the factual basis
for its | 20 | | findings and specifying the duties and powers
of the guardian | 21 | | and the legal disabilities to which the respondent is
subject .
| 22 | | (d) The selection of the guardian shall be in the | 23 | | discretion
of the court, which shall give due consideration to | 24 | | the preference of the
disabled person as to a guardian, as well | 25 | | as the qualifications of the
proposed guardian, in making its | 26 | | appointment.
|
| | | SB2894 | - 9 - | LRB097 17188 JLS 62388 b |
|
| 1 | | (Source: P.A. 89-396, eff. 8-20-95.)
| 2 | | (755 ILCS 5/13-1) (from Ch. 110 1/2, par. 13-1)
| 3 | | Sec. 13-1. Appointment and term of public administrator and | 4 | | public guardian.)
Except as provided in Sections Section 13-1.1 | 5 | | and 13-1.3 , before the first Monday of December,
1977 and every | 6 | | 4 years thereafter, and as often as vacancies occur, the
| 7 | | Governor, by and with the advice and consent of the Senate, | 8 | | shall
appoint in each county a suitable person to serve as | 9 | | public
administrator and a suitable person to serve as public | 10 | | guardian of the county.
The Governor may appoint the same | 11 | | person to serve as public guardian and public administrator in | 12 | | one or more counties. In considering the number of counties of | 13 | | service for any prospective public guardian or public | 14 | | administrator the Governor may consider the population of the | 15 | | county and the ability of the prospective public guardian or | 16 | | public administrator to travel to multiple counties and manage | 17 | | estates in multiple counties. Each person so appointed holds | 18 | | his office for
4 years from the first Monday of December, 1977 | 19 | | and every 4 years
thereafter or until his successor is | 20 | | appointed and qualified.
| 21 | | (Source: P.A. 96-752, eff. 1-1-10.)
| 22 | | (755 ILCS 5/13-1.3 new) | 23 | | Sec. 13-1.3. Transition to Office of State Guardian. In | 24 | | counties having a population of 1,000,000 or less, and in which |
| | | SB2894 | - 10 - | LRB097 17188 JLS 62388 b |
|
| 1 | | there is no currently serving public guardian or in which there | 2 | | is a public guardian serving under an expired term of office, | 3 | | the Governor shall, within 90 days after the effective date of | 4 | | this amendatory Act of the 97th General Assembly, appoint the | 5 | | Office of State Guardian the public guardian. Subsequently, in | 6 | | counties having a population of 1,000,000 or less and upon the | 7 | | expiration of the public guardian's term, the State Guardian | 8 | | shall be appointed the public guardian. The State Guardian | 9 | | appointed as public guardian shall serve continuously and not | 10 | | be subject to 4 year terms of appointment. In cases in which | 11 | | the State Guardian serves as public guardian, the State | 12 | | Guardian shall assume only the duties described in Sections 30 | 13 | | and 32 of the Guardianship and Advocacy Act and shall be | 14 | | otherwise subject to the provisions of the Guardianship and | 15 | | Advocacy Act and not this Article XIII.
| 16 | | (755 ILCS 5/13-5) (from Ch. 110 1/2, par. 13-5)
| 17 | | Sec. 13-5. Powers and duties of public guardian.) The court | 18 | | may appoint
the public guardian as the guardian of any disabled | 19 | | adult who is in need
of a public guardian and whose estate | 20 | | exceeds $100,000 in counties having a population in excess of | 21 | | 1,000,000 $25,000 . When a disabled adult
who has a smaller | 22 | | estate is in need of guardianship services in counties having a | 23 | | population in excess of 1,000,000 , the court
shall appoint the | 24 | | State guardian pursuant to Section 30 of the Guardianship
and | 25 | | Advocacy Act.
If the public guardian is appointed guardian of a |
| | | SB2894 | - 11 - | LRB097 17188 JLS 62388 b |
|
| 1 | | disabled adult and the
estate of the disabled adult is | 2 | | thereafter reduced to less than $100,000 $25,000 , the
court | 3 | | may, upon the petition of the public guardian and the approval | 4 | | by the
court of a final accounting of the disabled adult's | 5 | | estate, discharge the
public guardian and transfer the | 6 | | guardianship to the State guardian. The
public guardian shall | 7 | | serve not less than 14 days' notice to the State guardian
of | 8 | | the hearing date regarding the transfer.
When appointed by the | 9 | | court, the public guardian has the
same powers and duties as | 10 | | other guardians appointed under this Act, with
the following | 11 | | additions and modifications:
| 12 | | (a) The public guardian shall monitor the ward and his care | 13 | | and progress
on a continuous basis. Monitoring shall at minimum | 14 | | consist of monthly
contact with the ward, and the receipt of | 15 | | periodic reports from all
individuals and agencies, public or | 16 | | private, providing care or related
services to the ward.
| 17 | | (b) Placement of a ward outside of the ward's home may be | 18 | | made only after
the public guardian or his representative has | 19 | | visited the facility in which
placement is proposed.
| 20 | | (c) The public guardian shall prepare an inventory of the | 21 | | ward's belongings
and assets and shall maintain insurance on | 22 | | all of the ward's real and personal
property. No personal | 23 | | property shall be removed from the ward's possession
except for | 24 | | storage pending final placement or for liquidation in | 25 | | accordance
with this Act.
| 26 | | (d) The public guardian shall make no substantial |
| | | SB2894 | - 12 - | LRB097 17188 JLS 62388 b |
|
| 1 | | distribution of the
ward's estate without a court order.
| 2 | | (e) The public guardian may liquidate assets of the ward to | 3 | | pay for the
costs of the ward's care and for storage of the | 4 | | ward's personal property
only after notice of such pending | 5 | | action is given to all potential heirs
at law, unless notice is | 6 | | waived by the court; provided, however, that a
person who has | 7 | | been so notified may elect to pay for care or storage or
to pay | 8 | | fair market value of the asset or assets sought to be sold in | 9 | | lieu
of liquidation.
| 10 | | (f) Real property of the ward may be sold at fair market | 11 | | value after an
appraisal of the property has been made by a | 12 | | licensed appraiser; provided,
however, that the ward's | 13 | | residence may be sold only if the court finds that
the ward is | 14 | | not likely to be able to return home at a future date.
| 15 | | (g) The public guardian shall, at such intervals as the | 16 | | court may direct,
submit to the court an affidavit setting | 17 | | forth in detail the services he
has provided for the benefit of | 18 | | the ward.
| 19 | | (h) Upon the death of the ward, the public guardian shall | 20 | | turn over to
the court-appointed administrator all of the | 21 | | ward's assets and an account
of his receipt and administration | 22 | | of the ward's property. A guardian ad
litem shall be appointed | 23 | | for an accounting when the estate exceeds the amount
set in | 24 | | Section 25-1 of this Act for administration of small estates.
| 25 | | (i)(1) On petition of any person who appears to have an | 26 | | interest in
the estate, the court by temporary order may |
| | | SB2894 | - 13 - | LRB097 17188 JLS 62388 b |
|
| 1 | | restrain the public guardian
from performing specified acts of | 2 | | administration, disbursement or distribution,
or from exercise | 3 | | of any powers or discharge of any duties of his office,
or make | 4 | | any other order to secure proper performance of his duty, if it
| 5 | | appears to the court that the public guardian might otherwise | 6 | | take some
action contrary to the best interests of the ward. | 7 | | Persons with whom the
public guardian may transact business may | 8 | | be made parties.
| 9 | | (2) The matter shall be set for hearing within 10 days | 10 | | unless the parties
otherwise agree or unless for good cause | 11 | | shown the court determines that
additional time is required. | 12 | | Notice as the court directs shall be given
to the public | 13 | | guardian and his attorney of record, if any, and to any other
| 14 | | parties named defendant in the petition.
| 15 | | (j) On petition of the public guardian, the court in its | 16 | | discretion may
for good cause shown transfer guardianship to | 17 | | the State guardian.
| 18 | | (k) No later than January 31 of each year, the public | 19 | | guardian shall file
an annual report with the clerk of the | 20 | | Circuit Court, indicating, with respect
to the period covered | 21 | | by the report, the number of cases which he has handled,
the | 22 | | date on which each case was assigned, the date of termination | 23 | | of each
case which has been closed during the period, the | 24 | | disposition of each
terminated case, and the total amount of | 25 | | fees collected during the period
from each ward.
| 26 | | (l) (Blank).
|
| | | SB2894 | - 14 - | LRB097 17188 JLS 62388 b |
|
| 1 | | (Source: P.A. 96-752, eff. 1-1-10.)
| | | | SB2894 | - 15 - | LRB097 17188 JLS 62388 b |
|
| 1 | |
INDEX
| 2 | |
Statutes amended in order of appearance
| | 3 | | 20 ILCS 3955/31 | from Ch. 91 1/2, par. 731 | | 4 | | 20 ILCS 3955/32 | from Ch. 91 1/2, par. 732 | | 5 | | 705 ILCS 105/27.3f new | | | 6 | | 755 ILCS 5/11a-12 | from Ch. 110 1/2, par. 11a-12 | | 7 | | 755 ILCS 5/13-1 | from Ch. 110 1/2, par. 13-1 | | 8 | | 755 ILCS 5/13-1.3 new | | | 9 | | 755 ILCS 5/13-5 | from Ch. 110 1/2, par. 13-5 |
| |
|