Full Text of SB0080 102nd General Assembly
SB0080enr 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 | | Sections 11a-1, 11a-3, 11a-3.1, 11a-3.2, 11a-4, 11a-5, 11a-8, | 6 | | 11a-10, 11a-10.1, 11a-12, 11a-17, 11a-17.1, 11a-18, 11a-18.3, | 7 | | 11a-19, 11a-20, 13-1, 18-10, 19-2, 25-4, and 27-1 and by | 8 | | adding Section 11a-13.5 as follows:
| 9 | | (755 ILCS 5/11a-1) (from Ch. 110 1/2, par. 11a-1)
| 10 | | Sec. 11a-1. " Developmental disability " defined. ) | 11 | | "Developmental disability"
means a disability which is | 12 | | attributable to: (a) an intellectual disability, cerebral
| 13 | | palsy, epilepsy or autism; or to (b) any other condition which | 14 | | results in
impairment similar to that caused by an | 15 | | intellectual disability and which requires
services similar to | 16 | | those required by persons with intellectual disabilities. Such | 17 | | disability
must originate before the age of 18 years, be | 18 | | expected to continue indefinitely,
and constitute a | 19 | | substantial disability.
| 20 | | (Source: P.A. 99-143, eff. 7-27-15.)
| 21 | | (755 ILCS 5/11a-3) (from Ch. 110 1/2, par. 11a-3)
| 22 | | Sec. 11a-3. Adjudication of disability; Power to appoint |
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| 1 | | guardian.
| 2 | | (a) Upon the filing of a petition by a reputable person or | 3 | | by the alleged
person with a disability himself or on its own | 4 | | motion, the court may adjudge a person
to be a person with a | 5 | | disability, but only if it has been demonstrated by clear and
| 6 | | convincing evidence that the person is a person with a | 7 | | disability as defined in Section
11a-2. If the court adjudges | 8 | | a person to be a person with a disability, the court may | 9 | | appoint (1) a guardian of his person, if it has been | 10 | | demonstrated
by clear and convincing evidence that because of | 11 | | his disability he lacks
sufficient understanding or capacity
| 12 | | to make or communicate responsible decisions concerning the | 13 | | care of his
person, or (2) a guardian of his estate, if it has | 14 | | been demonstrated by clear
and convincing evidence that | 15 | | because of his disability he
is unable to manage his estate
or | 16 | | financial affairs, or (3) a guardian of his person and of his | 17 | | estate. The court may appoint co-guardians in accordance with | 18 | | Section 11a-15.
| 19 | | (b) Guardianship shall be utilized only as is necessary to | 20 | | promote
the well-being of the person with a disability, to | 21 | | protect him from neglect,
exploitation, or abuse, and to | 22 | | encourage development of his maximum
self-reliance and | 23 | | independence. Guardianship shall be ordered only to
the extent | 24 | | necessitated by the individual's actual mental, physical and
| 25 | | adaptive limitations. The order shall conform with Sections | 26 | | 11a-12 and 11a-14.
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| 1 | | (Source: P.A. 99-143, eff. 7-27-15.)
| 2 | | (755 ILCS 5/11a-3.1)
| 3 | | Sec. 11a-3.1. Appointment of standby guardian.
| 4 | | (a) The guardian of a person with a disability may | 5 | | designate in any writing,
including a will, a person qualified | 6 | | to
act under Section 11a-5 to be appointed as standby guardian | 7 | | of the person or
estate, or both, of the person with a | 8 | | disability. The
guardian may designate in any writing,
| 9 | | including a will, a person qualified to act under Section | 10 | | 11a-5 to be appointed
as successor standby guardian of the | 11 | | person or estate of the person with a disability, or
both. The | 12 | | designation must be witnessed by 2 or more credible witnesses | 13 | | at
least 18 years of age, neither of whom is the person | 14 | | designated as the
standby guardian. The designation may be | 15 | | proved by any competent evidence. If
the designation is | 16 | | executed and attested in the same manner as a will, it shall
| 17 | | have prima facie validity.
Prior to designating a proposed | 18 | | standby guardian, the guardian shall consult
with the person | 19 | | with a disability to determine the preference of the person | 20 | | with a disability as to
the person who will serve as standby | 21 | | guardian. The guardian shall give due
consideration to the | 22 | | preference of the person with a disability in selecting a | 23 | | standby
guardian.
| 24 | | (b) Upon the filing of a petition for the appointment of a | 25 | | standby guardian,
the court may appoint a standby guardian of |
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| 1 | | the person or estate, or both, of
the person with a disability | 2 | | as the court finds to be in the best interests interest of the
| 3 | | person with a disability.
The court shall apply the same | 4 | | standards used in determining the suitability
of a plenary or | 5 | | limited guardian in determining the suitability of a standby
| 6 | | guardian, giving due consideration to the preference of the | 7 | | person with a disability as
to a standby guardian.
The court | 8 | | may not appoint the Office of State Guardian, pursuant to
| 9 | | Section 30 of the Guardianship and Advocacy Act, or a public | 10 | | guardian, pursuant
to Section 13-5 of this Act, as a standby | 11 | | guardian, without the written consent
of the State Guardian or | 12 | | public guardian or an authorized representative of the
State | 13 | | Guardian or public guardian.
| 14 | | (c) The standby guardian shall take and file an oath or | 15 | | affirmation that the
standby guardian will faithfully | 16 | | discharge the duties of the office of standby
guardian | 17 | | according to law, and shall file in and have approved by the | 18 | | court a
bond binding the standby guardian so to do, but shall | 19 | | not be required to file a
bond until the standby guardian | 20 | | assumes all duties as guardian of the person with a disability | 21 | | under Section 11a-18.2.
| 22 | | (d) The designation of a standby guardian may, but need | 23 | | not, be in the
following form:
| 24 | | DESIGNATION OF STANDBY GUARDIAN
| 25 | | [IT IS IMPORTANT TO READ THE FOLLOWING INSTRUCTIONS:
| 26 | | A standby guardian is someone who has been appointed |
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| 1 | | by the court as the
person who will act as guardian of the | 2 | | person with a disability when the guardian of the person | 3 | | with a disability dies or is no longer willing or able to | 4 | | make and
carry out day-to-day care decisions concerning | 5 | | the person with a disability. By
properly completing this | 6 | | form, a guardian is naming the person that the
guardian | 7 | | wants to be appointed as the standby guardian of the | 8 | | person with a disability.
Signing the form does not | 9 | | appoint the standby guardian; to be appointed, a
petition | 10 | | must be filed in and approved by the court.]
| 11 | | 1. Guardian and Ward. I, (insert name of designating | 12 | | guardian),
currently residing at (insert address of | 13 | | designating guardian), am the guardian
of the following | 14 | | person with a disability: (insert name of ward).
| 15 | | 2. Standby Guardian. I hereby designate the following | 16 | | person to be
appointed as standby guardian for my ward | 17 | | listed above: (insert name and
address
of person | 18 | | designated).
| 19 | | 3. Successor Standby Guardian. If the person named in | 20 | | item 2 above
cannot or will not act as standby guardian, I | 21 | | designate the following person to
be appointed as | 22 | | successor standby guardian for my ward: (insert name and
| 23 | | address of person designated).
| 24 | | 4. Date and Signature. This designation is made this | 25 | | (insert day) day of
(insert month and year).
| 26 | | Signed: (designating guardian)
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| 1 | | 5. Witnesses. I saw the guardian sign this designation | 2 | | or the guardian
told
me that the guardian signed this | 3 | | designation. Then I signed the designation as
a witness in | 4 | | the presence of the guardian. I am not designated in this
| 5 | | instrument to
act as a standby guardian for the guardian's | 6 | | ward. (insert space for names,
addresses, and signatures | 7 | | of 2 witnesses)
| 8 | | [END OF FORM] | 9 | | (Source: P.A. 99-143, eff. 7-27-15.)
| 10 | | (755 ILCS 5/11a-3.2)
| 11 | | Sec. 11a-3.2. Short-term guardian.
| 12 | | (a) The guardian of a person with a disability
may appoint | 13 | | in writing, without court approval, a short-term guardian
of | 14 | | the person with a disability
to take over the guardian's | 15 | | duties, to the extent provided in Section
11a-18.3, each time | 16 | | the guardian is unavailable or unable to carry out those
| 17 | | duties. The guardian shall consult with the person with a | 18 | | disability to determine the
preference of the person with a | 19 | | disability concerning the person to be appointed as
short-term | 20 | | guardian and the guardian shall give due consideration to the
| 21 | | preference of the person with a disability in choosing a | 22 | | short-term guardian.
The written instrument appointing a | 23 | | short-term
guardian shall be dated and shall identify the | 24 | | appointing guardian, the
person with a disability, the person | 25 | | appointed to be the short-term guardian, and the
termination |
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| 1 | | date of the appointment. The
written instrument shall be | 2 | | signed by, or at the direction of, the appointing
guardian in | 3 | | the presence of at least 2 credible witnesses at least 18 years | 4 | | of
age, neither of whom is the person appointed as the | 5 | | short-term guardian.
The person appointed as the short-term | 6 | | guardian shall also sign the written
instrument, but need not | 7 | | sign at the same time as the appointing guardian.
A guardian | 8 | | may not appoint the Office of State Guardian or a public | 9 | | guardian
as a short-term guardian, without the written consent | 10 | | of the State Guardian or
public guardian or an authorized | 11 | | representative of the State Guardian or public
guardian.
| 12 | | (b) The appointment of the short-term guardian is | 13 | | effective immediately upon
the date the written instrument is | 14 | | executed, unless the written instrument
provides for the | 15 | | appointment to become effective upon a later specified date or
| 16 | | event. A short-term guardian appointed by the guardian shall | 17 | | have authority to
act as guardian of the
person with a | 18 | | disability for a cumulative total of 60 days during any | 19 | | 12-month 12 month period.
Only one written instrument | 20 | | appointing a short-term guardian may be in force at
any given | 21 | | time.
| 22 | | (c) Every appointment of a short-term guardian may be | 23 | | amended or revoked by
the appointing guardian at any time and | 24 | | in any manner communicated to the
short-term guardian or to | 25 | | any other person. Any person other than the
short-term | 26 | | guardian to whom a revocation or amendment is communicated or
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| 1 | | delivered shall make all reasonable
efforts to inform the | 2 | | short-term guardian of that fact as promptly as possible.
| 3 | | (d) The appointment of a short-term guardian or successor | 4 | | short-term
guardian does not affect the rights in the person | 5 | | with a disability of any guardian
other than the
appointing | 6 | | guardian.
| 7 | | (e) The written instrument appointing a short-term | 8 | | guardian may, but need
not, be in the following form:
| 9 | | APPOINTMENT OF SHORT-TERM GUARDIAN
| 10 | | [IT IS IMPORTANT TO READ THE FOLLOWING INSTRUCTIONS:
| 11 | | By properly completing this form, a guardian is | 12 | | appointing a short-term
guardian of the person with a | 13 | | disability for a cumulative total of up to 60 days during
| 14 | | any 12-month 12 month period. A separate form
shall be | 15 | | completed each time a short-term guardian takes over | 16 | | guardianship
duties. The person or persons appointed as | 17 | | the short-term
guardian shall sign the form, but need not | 18 | | do so at the same time as the
guardian.]
| 19 | | 1. Guardian and Ward. I, (insert name of appointing | 20 | | guardian),
currently residing at (insert address of | 21 | | appointing guardian), am the guardian
of the following | 22 | | person with a disability: (insert name of ward).
| 23 | | 2. Short-term Guardian. I hereby appoint the following | 24 | | person as the
short-term guardian for my ward: (insert | 25 | | name and address of appointed person).
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| 1 | | 3. Effective date. This appointment becomes effective: | 2 | | (check one if you
wish it to be applicable)
| 3 | | ( ) On the date that I state in writing that I am no | 4 | | longer either
willing or able to make and carry out | 5 | | day-to-day care decisions concerning
my ward.
| 6 | | ( ) On the date that a physician familiar with my | 7 | | condition certifies
in writing that I am no longer willing | 8 | | or able to make and carry out day-to-day
care decisions | 9 | | concerning my ward.
| 10 | | ( ) On the date that I am admitted as an in-patient to | 11 | | a hospital or
other health care institution.
| 12 | | ( ) On the following date: (insert date).
| 13 | | ( ) Other: (insert other).
| 14 | | [NOTE: If this item is not completed, the appointment | 15 | | is effective
immediately upon the date the form is signed | 16 | | and dated below.]
| 17 | | 4. Termination. This appointment shall terminate
on: | 18 | | (enter a date corresponding to 60 days from the current | 19 | | date, less the
number of days within the past 12 months | 20 | | that any short-term guardian has taken
over guardianship | 21 | | duties), unless it terminates sooner as determined by the
| 22 | | event or date
I have indicated below: (check one if you | 23 | | wish it to be applicable)
| 24 | | ( ) On the date that I state in writing that I am | 25 | | willing and able to
make and carry out day-to-day care | 26 | | decisions concerning my ward.
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| 1 | | ( ) On the date that a physician familiar with my | 2 | | condition certifies
in writing that I am willing and able | 3 | | to make and carry out day-to-day care
decisions concerning | 4 | | my ward.
| 5 | | ( ) On the date that I am discharged from the hospital | 6 | | or other
health care institution where I was admitted as | 7 | | an in-patient, which
established the effective date.
| 8 | | ( ) On the date which is (state a number of days)
days | 9 | | after the effective date.
| 10 | | ( ) Other: (insert other).
| 11 | | [NOTE: If this item is not completed, the appointment | 12 | | will be effective
until the 60th day within the past year | 13 | | during which time any short-term
guardian of this ward had | 14 | | taken over guardianship duties from the guardian,
| 15 | | beginning on the effective date.]
| 16 | | 5. Date and signature of appointing guardian. This | 17 | | appointment is made
this (insert day) day of (insert month | 18 | | and year).
| 19 | | Signed: (appointing guardian)
| 20 | | 6. Witnesses. I saw the guardian sign this instrument | 21 | | or I saw the
guardian direct someone to sign this | 22 | | instrument for the guardian. Then I
signed this instrument | 23 | | as a witness in the presence of the guardian. I am not
| 24 | | appointed in this instrument to act as the short-term | 25 | | guardian for the
guardian's ward. (insert space for names, | 26 | | addresses, and signatures of 2
witnesses)
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| 1 | | 7. Acceptance of short-term guardian. I accept this | 2 | | appointment as
short-term guardian on this (insert day) | 3 | | day of (insert month and year).
| 4 | | Signed: (short-term guardian)
| 5 | | [END OF FORM] | 6 | | (f) Each time the guardian appoints a short-term guardian, | 7 | | the guardian
shall: (i) provide the person with a disability | 8 | | with the name, address, and telephone
number of the short-term | 9 | | guardian; (ii) advise the person with a disability that he has
| 10 | | the right to object to the appointment of the short-term | 11 | | guardian by filing a
petition in court; and (iii) notify the | 12 | | person with a disability when the short-term
guardian will be | 13 | | taking over guardianship duties and the length of time that
| 14 | | the short-term guardian will be acting as guardian.
| 15 | | (Source: P.A. 99-143, eff. 7-27-15.)
| 16 | | (755 ILCS 5/11a-4) (from Ch. 110 1/2, par. 11a-4)
| 17 | | Sec. 11a-4. Temporary guardian. | 18 | | (a) Prior to the appointment of a guardian
under this | 19 | | Article, pending an appeal in relation to the
appointment, or
| 20 | | pending the
completion of a citation proceeding brought | 21 | | pursuant to Section 23-3 of this
Act,
or upon a guardian's | 22 | | death, incapacity, or resignation, the court may appoint a | 23 | | temporary guardian upon a showing of the necessity
therefor | 24 | | for the immediate welfare and protection of the alleged
person | 25 | | with a disability or his or her estate
on such notice and |
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| 1 | | subject to such conditions as the court may prescribe.
In | 2 | | determining the necessity for temporary guardianship, the | 3 | | immediate
welfare and protection of the alleged person with a | 4 | | disability and his or her estate
shall be
of paramount | 5 | | concern, and the interests of the petitioner, any care | 6 | | provider,
or any other party shall not outweigh the interests | 7 | | of the alleged person with a disability.
The temporary | 8 | | guardian shall have the limited powers and duties of a | 9 | | guardian
of the person or of the estate which are specifically | 10 | | enumerated by court
order. The court order shall state the | 11 | | actual harm identified by the court
that necessitates | 12 | | temporary guardianship or any extension thereof. | 13 | | (b) The temporary guardianship shall
expire within 60 days | 14 | | after the
appointment or whenever a guardian is regularly | 15 | | appointed, whichever occurs
first. No extension shall be | 16 | | granted except:
| 17 | | (1) In a case where there has been an adjudication of | 18 | | disability, an extension shall be granted: | 19 | | (i) pending the disposition on appeal of an | 20 | | adjudication of disability; | 21 | | (ii) pending the completion of a citation | 22 | | proceeding brought pursuant to Section 23-3; | 23 | | (iii) pending the appointment of a successor | 24 | | guardian in a case where the former guardian has | 25 | | resigned, has become incapacitated, or is deceased; or | 26 | | (iv) where the guardian's powers have been |
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| 1 | | suspended pursuant to a court order. | 2 | | (2) In a case where there has not been an adjudication | 3 | | of disability, an extension shall be granted pending the | 4 | | disposition of a petition brought pursuant to Section | 5 | | 11a-8 so long as the court finds it is in the best | 6 | | interests interest of the alleged person with a disability | 7 | | to extend the temporary guardianship so as to protect the | 8 | | alleged person with a disability from any potential abuse, | 9 | | neglect, self-neglect, exploitation, or other harm and | 10 | | such extension lasts no more than 120 days from the date | 11 | | the temporary guardian was originally appointed. | 12 | | The ward shall have the right any time after the | 13 | | appointment
of a temporary guardian is made to petition the | 14 | | court to revoke the appointment
of the temporary guardian.
| 15 | | (Source: P.A. 99-70, eff. 1-1-16; 99-143, eff. 7-27-15; | 16 | | 99-642, eff. 7-28-16.)
| 17 | | (755 ILCS 5/11a-5) (from Ch. 110 1/2, par. 11a-5)
| 18 | | Sec. 11a-5. Who may act as guardian.
| 19 | | (a) A person is qualified to act as guardian of the person | 20 | | and as guardian of the
estate of a person with a disability if | 21 | | the court finds that the proposed guardian is capable of | 22 | | providing an active and suitable program of guardianship for | 23 | | the person with a disability and that the proposed guardian: | 24 | | (1) has attained the age of 18 years; | 25 | | (2) is a resident of the United States; |
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| 1 | | (3) is not of unsound mind; | 2 | | (4) is not an adjudged person with a disability as | 3 | | defined in this Act; and | 4 | | (5) has not been convicted of a felony, unless the | 5 | | court finds appointment of the person convicted of a | 6 | | felony to be in the best interests of the person with a | 7 | | disability, and as part of the best interests interest | 8 | | determination, the court has considered the nature of the | 9 | | offense, the date of offense, and the evidence of the | 10 | | proposed guardian's rehabilitation. No person shall be | 11 | | appointed who has been convicted of a felony involving | 12 | | harm or threat to a minor or an elderly person or a person | 13 | | with a disability, including a felony sexual offense.
| 14 | | (b) Any public agency, or not-for-profit corporation found | 15 | | capable by
the court of providing an active and suitable | 16 | | program of guardianship for
the person with a disability, | 17 | | taking into consideration the nature of such person's
| 18 | | disability and the nature of such organization's services, may | 19 | | be appointed
guardian of the person or of the estate, or both, | 20 | | of the person with a disability.
The court shall not appoint as | 21 | | guardian an agency or employee of an agency that is directly
| 22 | | providing residential services to the ward. One person or | 23 | | agency may be
appointed guardian of the person and another | 24 | | person or agency appointed
guardian of the estate.
| 25 | | (b-5)(1) The court may appoint separate individuals or | 26 | | entities to act as the guardian of the person and the guardian |
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| 1 | | of the estate of a person with a disability if the court finds | 2 | | it is in the best interests of the person with a disability | 3 | | that separate guardians be appointed. The court shall not | 4 | | appoint a separate person or entity to act as guardian of the | 5 | | person or guardian of the estate with a public guardian or the | 6 | | Office of State Guardian unless the public guardian or the | 7 | | Office of State Guardian agrees to such an appointment. | 8 | | (2) The court may appoint co-guardians to act as guardian | 9 | | of the person, guardian of the estate, or both the guardian of | 10 | | the person and the guardian of the estate if the court finds it | 11 | | is in the best interests of the person with a disability. When | 12 | | considering appointing co-guardians, the court shall consider | 13 | | the proposed co-guardians' history of cooperating and working | 14 | | together on behalf of the person with a disability. The court | 15 | | shall appoint only co-guardians who agree to serve together. | 16 | | The court shall not appoint a public guardian or the Office of | 17 | | State Guardian as a co-guardian for a person with a | 18 | | disability. | 19 | | (c) Any corporation qualified to accept and execute trusts | 20 | | in this State
may be appointed guardian or limited guardian of | 21 | | the estate of a person with a disability.
| 22 | | (Source: P.A. 99-143, eff. 7-27-15; 100-756, eff. 1-1-19 .)
| 23 | | (755 ILCS 5/11a-8) (from Ch. 110 1/2, par. 11a-8)
| 24 | | Sec. 11a-8. Petition. The petition
for adjudication of | 25 | | disability and for the
appointment of a guardian of the estate |
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| 1 | | or the person or both of an alleged
person with a disability | 2 | | must state, if known or reasonably ascertainable: (a) the
| 3 | | relationship
and interest of the petitioner to the respondent; | 4 | | (b) the name, date of
birth, and place
of residence of the | 5 | | respondent; (c) the reasons for the guardianship;
(d) the name | 6 | | and post office address of the respondent's guardian, if
any, | 7 | | or of the respondent's agent or agents appointed under the | 8 | | Illinois
Power
of Attorney Act, if any; (e) the name and post | 9 | | office addresses of the
nearest relatives of
the respondent in | 10 | | the following order: (1) the spouse and adult
children, | 11 | | parents and adult brothers and
sisters, if any; if none, (2) | 12 | | nearest adult kindred known to
the
petitioner; (f) the name | 13 | | and address of the person with whom or the
facility in which | 14 | | the respondent is residing; (g) the approximate value
of the | 15 | | personal and real estate; (h) the amount of the anticipated | 16 | | annual gross
income and other receipts; (i) the name, post | 17 | | office address and in case
of an individual, the age, | 18 | | relationship to the respondent and occupation of
the proposed | 19 | | guardian.
In addition, if the petition seeks the appointment | 20 | | of a previously appointed
standby guardian as guardian of the | 21 | | person with a disability, the petition must also
state: (j) | 22 | | the facts concerning the standby guardian's previous | 23 | | appointment and
(k) the date of death of the guardian of the | 24 | | person with a disability or the facts concerning
the consent | 25 | | of the guardian of the person with a disability to the | 26 | | appointment of the standby
guardian as guardian, or the |
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| 1 | | willingness and ability of the
guardian of the person with a | 2 | | disability to make and carry out day-to-day care decisions | 3 | | concerning the
person with a disability.
A petition for | 4 | | adjudication of disability and the appointment of a guardian
| 5 | | of the estate or the person
or both of an alleged person with a | 6 | | disability may not be dismissed or
withdrawn without
leave of | 7 | | the court. A petitioner who seeks to revoke or construe a power | 8 | | of attorney for the alleged person with a disability, or | 9 | | review the agent's conduct, shall do so in conformity with the | 10 | | Illinois Power of Attorney Act, and as set forth in subsection | 11 | | (c) of Section 11a-17 and subsection (e) of Section 11a-18 of | 12 | | this Act.
| 13 | | (Source: P.A. 99-143, eff. 7-27-15.)
| 14 | | (755 ILCS 5/11a-10) (from Ch. 110 1/2, par. 11a-10)
| 15 | | Sec. 11a-10. Procedures preliminary to hearing.
| 16 | | (a) Upon the filing of a petition pursuant to Section | 17 | | 11a-8, the court shall
set a date and place for hearing to take | 18 | | place within 30 days. The court
shall appoint a guardian ad | 19 | | litem to report to the court concerning the
respondent's best | 20 | | interests consistent with the provisions of this Section,
| 21 | | except that
the appointment of a guardian ad litem shall not be | 22 | | required when
the court determines that such appointment is | 23 | | not necessary for the protection
of the respondent or a | 24 | | reasonably informed decision on the petition.
If the guardian | 25 | | ad litem is not a licensed attorney, he or she shall be
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| 1 | | qualified,
by
training or experience, to work with or advocate | 2 | | for persons with developmental disabilities, the mentally ill, | 3 | | persons with physical disabilities, the elderly, or persons | 4 | | with a disability due to mental deterioration, depending on | 5 | | the type of disability that is
alleged in the petition.
The | 6 | | court may allow the guardian ad litem reasonable compensation. | 7 | | The
guardian ad litem may consult with a person who by training | 8 | | or experience is
qualified to work with persons with a | 9 | | developmental disability, persons with
mental illness, persons | 10 | | with physical disabilities, or persons with a disability due | 11 | | to
mental deterioration, depending on the type of disability | 12 | | that is alleged.
The guardian ad litem shall personally | 13 | | observe the respondent prior to the
hearing and shall inform
| 14 | | him orally and in writing of the contents of the petition and | 15 | | of his rights , including providing a copy of the notice of | 16 | | rights required under subsection (e)
under Section 11a-11 .
The | 17 | | guardian ad litem shall also attempt to elicit the | 18 | | respondent's position
concerning the adjudication of | 19 | | disability, the proposed guardian, a proposed
change in | 20 | | residential placement, changes in care that might result from | 21 | | the
guardianship, and other areas of inquiry deemed | 22 | | appropriate by the court.
Notwithstanding any provision in the | 23 | | Mental Health and Developmental Disabilities Confidentiality | 24 | | Act or any other law, a guardian ad litem shall have the right | 25 | | to inspect and copy any medical or mental health record of the | 26 | | respondent which the guardian ad litem deems necessary, |
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| 1 | | provided that the information so disclosed shall not be | 2 | | utilized for any other purpose nor be redisclosed except in | 3 | | connection with the proceedings. At or before the hearing, the | 4 | | guardian ad litem shall file a written report
detailing his or | 5 | | her observations of the respondent, the responses of the
| 6 | | respondent to any of the inquiries detailed in this Section, | 7 | | the opinion of the
guardian
ad litem or other professionals | 8 | | with whom the guardian ad litem consulted
concerning the | 9 | | appropriateness of guardianship, and any other material issue
| 10 | | discovered by the guardian ad litem. The guardian ad litem | 11 | | shall appear at the
hearing and testify as to any issues | 12 | | presented in his or her report.
| 13 | | (b) The court (1) may appoint counsel for the respondent, | 14 | | if the court finds
that the interests of the respondent will be | 15 | | best served by the appointment,
and (2) shall appoint counsel | 16 | | upon respondent's request or if the respondent
takes a | 17 | | position adverse to that of the guardian ad litem. The | 18 | | respondent
shall be permitted to obtain the appointment of | 19 | | counsel either at the hearing
or by any written or oral request | 20 | | communicated to the court prior to the
hearing. The summons | 21 | | shall inform the respondent of this right to obtain
appointed | 22 | | counsel. The court may allow counsel for the respondent | 23 | | reasonable
compensation.
| 24 | | (c) If the respondent is unable to pay the fee of the | 25 | | guardian ad litem or
appointed counsel, or both, the court may | 26 | | enter an order for
the petitioner to
pay all
such
fees or such |
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| 1 | | amounts as the respondent or the respondent's estate may be | 2 | | unable
to pay.
However, in cases where the Office of State | 3 | | Guardian is the petitioner,
consistent with Section 30 of the | 4 | | Guardianship and Advocacy Act, where the public guardian is | 5 | | the petitioner, consistent with Section 13-5 of this Act,
| 6 | | where an adult protective services agency is the petitioner, | 7 | | pursuant to
Section 9 of the Adult Protective Services Act, or | 8 | | where the Department of Children and Family Services is the | 9 | | petitioner under subparagraph (d) of subsection (1) of Section | 10 | | 2-27 of the Juvenile Court Act of 1987, no guardian ad litem or | 11 | | legal fees shall be assessed against the Office of
State | 12 | | Guardian, the public guardian, the adult protective services | 13 | | agency, or the Department of Children and Family Services.
| 14 | | (d) The hearing may be held at such convenient place as the | 15 | | court directs,
including at a facility in which the respondent | 16 | | resides.
| 17 | | (e) Unless he is the petitioner, the respondent shall be | 18 | | personally
served with a copy of the petition and a summons not | 19 | | less than 14 days
before the hearing.
The summons shall be | 20 | | printed in large, bold type and shall include the
following | 21 | | notice :
| 22 | | NOTICE OF RIGHTS OF RESPONDENT
| 23 | | You have been named as a respondent in a guardianship | 24 | | petition asking that
you be declared a person with a | 25 | | disability. If the court grants the petition, a
guardian will | 26 | | be appointed for you. A copy of the guardianship petition is
|
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| 1 | | attached for your convenience.
| 2 | | The date and time of the hearing are:
| 3 | | The place where the hearing will occur is:
| 4 | | The Judge's name and phone number is:
| 5 | | If a guardian is appointed for you, the guardian may be | 6 | | given the right to
make all
important personal decisions for | 7 | | you, such as where you may live, what medical
treatment you may | 8 | | receive, what places you may visit, and who may visit you. A
| 9 | | guardian may also be given the right to control and manage your | 10 | | money and other
property, including your home, if you own one. | 11 | | You may lose the right to make
these decisions for yourself.
| 12 | | You have the following legal rights:
| 13 | | (1) You have the right to be present at the court | 14 | | hearing.
| 15 | | (2) You have the right to be represented by a lawyer, | 16 | | either one that you
retain, or one appointed by the Judge.
| 17 | | (3) You have the right to ask for a jury of six persons | 18 | | to hear your case.
| 19 | | (4) You have the right to present evidence to the | 20 | | court and to confront
and
cross-examine witnesses.
| 21 | | (5) You have the right to ask the Judge to appoint an | 22 | | independent expert
to examine you and give an opinion | 23 | | about your need for a guardian.
| 24 | | (6) You have the right to ask that the court hearing be | 25 | | closed to the
public.
| 26 | | (7) You have the right to tell the court whom you |
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| 1 | | prefer to have for your
guardian.
| 2 | | (8) You have the right to ask a judge to find that | 3 | | although you lack some capacity to make your own | 4 | | decisions, you can make other decisions, and therefore it | 5 | | is best for the court to appoint only a limited guardian | 6 | | for you. | 7 | | You do not have to attend the court hearing if you do not | 8 | | want to be there.
If you do not attend, the Judge may appoint a | 9 | | guardian if the Judge finds that
a guardian would be of benefit | 10 | | to you. The hearing will not be postponed or
canceled if you do | 11 | | not attend. If you are unable to attend the hearing in person | 12 | | or you will suffer harm if you attend, the Judge can decide to | 13 | | hold the hearing at a place that is convenient. The Judge can | 14 | | also follow the rule of the Supreme Court of this State, or its | 15 | | local equivalent, and decide if a video conference is | 16 | | appropriate.
| 17 | | IT IS VERY IMPORTANT THAT YOU ATTEND THE HEARING IF YOU DO | 18 | | NOT WANT A
GUARDIAN OR IF YOU WANT SOMEONE OTHER THAN THE | 19 | | PERSON NAMED IN THE GUARDIANSHIP
PETITION TO BE YOUR GUARDIAN. | 20 | | IF YOU DO NOT WANT A GUARDIAN OR IF YOU HAVE ANY
OTHER | 21 | | PROBLEMS, YOU SHOULD CONTACT AN ATTORNEY OR COME TO COURT AND | 22 | | TELL THE
JUDGE.
| 23 | | Service of summons and the petition may be made by a | 24 | | private person 18
years
of
age or over who is not a party to | 25 | | the action.
| 26 | | [END OF FORM]. |
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| 1 | | (f) Notice of the time and place of the hearing shall be | 2 | | given by the
petitioner by mail or in person to those persons, | 3 | | including the proposed
guardian, whose names and addresses
| 4 | | appear in the petition and who do not waive notice, not less | 5 | | than 14 days
before the hearing.
| 6 | | (Source: P.A. 99-143, eff. 7-27-15; 99-642, eff. 7-28-16; | 7 | | 100-201, eff. 8-18-17; 100-427, eff. 1-1-18 .)
| 8 | | (755 ILCS 5/11a-10.1) (from Ch. 110 1/2, par. 11a-10.1)
| 9 | | Sec. 11a-10.1. Domestic Violence: Order of Protection. An | 10 | | order of
protection, as defined in the Illinois Domestic | 11 | | Violence Act of 1986, as
amended, may be issued in conjunction | 12 | | with a proceeding for
adjudication of disability and | 13 | | appointment of guardian if the petition for
an order of | 14 | | protection alleges that a person who is party to or the subject
| 15 | | of the proceeding has been abused by or has abused a family or | 16 | | household
member or has been neglected or exploited as defined | 17 | | in the Illinois
Domestic Violence Act of 1986 , as amended .
| 18 | | If the subject of the order of protection is a high-risk | 19 | | adult with
disabilities for whom a guardian has been | 20 | | appointed, the court may appoint
a temporary substitute | 21 | | guardian under the provisions of this Act. The
court shall | 22 | | appoint a temporary substitute guardian if the appointed
| 23 | | guardian is named as a respondent in a petition for an order of | 24 | | protection
under the Illinois Domestic Violence Act of 1986 , | 25 | | as amended . The
Illinois Domestic Violence Act of 1986 shall |
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| 1 | | govern the issuance,
enforcement and recording of orders of | 2 | | protection issued under this Section.
| 3 | | (Source: P.A. 86-542.)
| 4 | | (755 ILCS 5/11a-12) (from Ch. 110 1/2, par. 11a-12)
| 5 | | Sec. 11a-12. Order of appointment. ) | 6 | | (a) If basis for the
appointment of a guardian as | 7 | | specified in Section 11a-3 is not found,
the court shall | 8 | | dismiss the petition.
| 9 | | (b) If the respondent is adjudged to be a person with a | 10 | | disability and to lack some but not all of the capacity as | 11 | | specified in Section 11a-3, and if the court finds that
| 12 | | guardianship is necessary for the protection of the person | 13 | | with a disability, his or her estate, or both, the court shall | 14 | | appoint a
limited guardian for the respondent's person or | 15 | | estate or both. The
court shall enter a written order stating
| 16 | | the factual basis for its findings and specifying the duties | 17 | | and powers of the guardian and the legal disabilities to which | 18 | | the respondent is subject.
| 19 | | (c) If the respondent is adjudged to be a person with a | 20 | | disability and to be totally without capacity as specified in | 21 | | Section 11a-3, and if the court finds
that limited | 22 | | guardianship will not provide sufficient protection for the | 23 | | person with a disability, his
or her estate, or both, the court | 24 | | shall
appoint a plenary guardian for the respondent's person | 25 | | or estate or both.
The court shall enter a written order |
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| 1 | | stating the factual basis
for its findings.
| 2 | | (d) The selection of the guardian shall be in the | 3 | | discretion
of the court, which shall give due consideration to | 4 | | the preference of the
person with a disability as to a | 5 | | guardian, as well as the qualifications of the
proposed | 6 | | guardian, in making its appointment. However, the paramount | 7 | | concern in the selection of the guardian is the best interests | 8 | | interest and well-being of the person with a disability.
| 9 | | One person or agency may be appointed a limited or plenary | 10 | | guardian of the person and another person or corporate trustee | 11 | | appointed as a limited or plenary guardian of the estate. If | 12 | | different persons are appointed, the court shall consider the | 13 | | factors set forth in subsection (b-5) of Section 11a-5. The | 14 | | court shall enter a written order stating the factual basis | 15 | | for its findings. | 16 | | (e) The order of appointment of a guardian of the person in | 17 | | any county with a population of less than 3 million shall | 18 | | include the requirement that the guardian of the person | 19 | | complete the training program as provided in Section 33.5 of | 20 | | the Guardianship and Advocacy Act that outlines the | 21 | | responsibilities of the guardian of the person and the rights | 22 | | of the person under guardianship and file with the court a | 23 | | certificate of completion one year from the date of issuance | 24 | | of the letters of guardianship, except that: (1) the chief | 25 | | judge of any circuit may order implementation of another | 26 | | training program by a suitable provider containing |
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| 1 | | substantially similar content; (2) employees of the Office of | 2 | | the State Guardian, public guardians, attorneys currently | 3 | | authorized to practice law, corporate fiduciaries, and persons | 4 | | certified by the Center for Guardianship Certification are | 5 | | exempt from this training requirement; and (3) the court may, | 6 | | for good cause shown, exempt from this requirement an | 7 | | individual not otherwise listed in item (2). For the purposes | 8 | | of this subsection (e), good cause may be proven by affidavit. | 9 | | If the court finds good cause to exempt an individual from the | 10 | | training requirement, the order of appointment shall so state. | 11 | | (Source: P.A. 99-143, eff. 7-27-15; 100-483, eff. 9-8-18 .)
| 12 | | (755 ILCS 5/11a-13.5 new) | 13 | | Sec. 11a-13.5. Guardian fees. A guardian is entitled to | 14 | | reasonable and appropriate compensation for services related | 15 | | to guardianship duties, but all fees must be reviewed and | 16 | | approved by the court pursuant to a fee petition. In | 17 | | considering the reasonableness of any fee petition brought by | 18 | | a guardian under this Section, the court shall consider the | 19 | | following: | 20 | | (1) the powers and duties assigned to the guardian by | 21 | | the court; | 22 | | (2) the necessity of any services provided; | 23 | | (3) the time required, the degree of difficulty, and | 24 | | the experience needed to complete the task; | 25 | | (4) the needs of the ward and the costs of |
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| 1 | | alternatives; and | 2 | | (5) other facts and circumstances material to the best | 3 | | interests of the ward or his or her estate. | 4 | | Upon the death of the ward, fees and costs awarded under | 5 | | this Section shall be considered as a first-class claim for | 6 | | administrative expenses as set forth in Section 18-10 and may | 7 | | be paid from the guardianship estate or from the decedent's | 8 | | estate.
| 9 | | (755 ILCS 5/11a-17) (from Ch. 110 1/2, par. 11a-17)
| 10 | | Sec. 11a-17. Duties of personal guardian.
| 11 | | (a) To the extent ordered by the court and under the | 12 | | direction of the
court, the guardian of the person shall have | 13 | | custody of the ward and the
ward's minor and adult dependent | 14 | | children and shall procure for them and shall
make provision | 15 | | for their support, care, comfort, health, education and
| 16 | | maintenance, and professional services as are appropriate, but | 17 | | the ward's
spouse may not be deprived of the custody and | 18 | | education of the ward's minor
and adult dependent children, | 19 | | without the consent of the spouse, unless the
court finds that | 20 | | the spouse is not a fit and competent person to have that
| 21 | | custody and education. The guardian shall assist the ward in | 22 | | the
development of maximum self-reliance and independence. The | 23 | | guardian of the
person may petition the court for an order | 24 | | directing the guardian of the
estate to pay an amount | 25 | | periodically for the provision of the services
specified by |
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| 1 | | the court order. If the ward's estate is insufficient to
| 2 | | provide for education and the guardian of the ward's person | 3 | | fails to
provide education, the court may award the custody of | 4 | | the ward to some
other person for the purpose of providing | 5 | | education. If a person makes a
settlement upon or provision | 6 | | for the support or education of a ward, the
court may make an | 7 | | order for the visitation of the ward by the person making
the | 8 | | settlement or provision as the court deems proper. A guardian | 9 | | of the person may not admit a ward to a mental health facility | 10 | | except at the ward's request as provided in Article IV of the | 11 | | Mental Health and Developmental Disabilities Code and unless | 12 | | the ward has the capacity to consent to such admission as | 13 | | provided in Article IV of the Mental Health and Developmental | 14 | | Disabilities Code.
| 15 | | (a-3) If a guardian of an estate has not been appointed, | 16 | | the guardian of the person may, without an order of court, | 17 | | open, maintain, and transfer funds to an ABLE account on | 18 | | behalf of the ward and the ward's minor and adult dependent | 19 | | children as specified under Section 16.6 of the State | 20 | | Treasurer Act. | 21 | | (a-5) If the ward filed a petition for dissolution of | 22 | | marriage under the
Illinois
Marriage and Dissolution of | 23 | | Marriage Act before the ward was adjudicated a
person with a | 24 | | disability under this Article, the guardian of the ward's | 25 | | person and estate may
maintain that
action for
dissolution of | 26 | | marriage on behalf of the ward. Upon petition by the guardian |
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| 1 | | of the ward's person or estate, the court may authorize and | 2 | | direct a guardian of the ward's person or estate to file a | 3 | | petition for dissolution of marriage or to file a petition for | 4 | | legal separation or declaration of invalidity of marriage | 5 | | under the Illinois Marriage and Dissolution of Marriage Act on | 6 | | behalf of the ward if the court finds by clear and convincing | 7 | | evidence that the relief sought is in the ward's best | 8 | | interests. In making its determination, the court shall | 9 | | consider the standards set forth in subsection (e) of this | 10 | | Section. | 11 | | (a-10) Upon petition by the guardian of the ward's person | 12 | | or estate, the court may authorize and direct a guardian of the | 13 | | ward's person or estate to consent, on behalf of the ward, to | 14 | | the ward's marriage pursuant to Part II of the Illinois | 15 | | Marriage and Dissolution of Marriage Act if the court finds by | 16 | | clear and convincing evidence that the marriage is in the | 17 | | ward's best interests. In making its determination, the court | 18 | | shall consider the standards set forth in subsection (e) of | 19 | | this Section. Upon presentation of a court order authorizing | 20 | | and directing a guardian of the ward's person and estate to | 21 | | consent to the ward's marriage, the county clerk shall accept | 22 | | the guardian's application, appearance, and signature on | 23 | | behalf of the ward for purposes of issuing a license to marry | 24 | | under Section 203 of the Illinois Marriage and Dissolution of | 25 | | Marriage Act.
| 26 | | (b) If the court directs, the guardian of the person shall |
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| 1 | | file
with the court at intervals indicated by the court, a | 2 | | report that
shall state briefly: (1) the current mental, | 3 | | physical, and social
condition of the ward and the ward's | 4 | | minor and adult dependent children; (2)
their present living | 5 | | arrangement, and a description and the address of
every | 6 | | residence where they lived during the reporting period and the | 7 | | length
of stay at each place; (3) a summary of the medical, | 8 | | educational,
vocational, and other professional services given | 9 | | to them; (4) a resume of
the guardian's visits with and | 10 | | activities on behalf of the ward and the ward's
minor and adult | 11 | | dependent children; (5) a recommendation as to the need for
| 12 | | continued guardianship; (6) any other information requested by | 13 | | the court or
useful in the opinion of the guardian. The Office | 14 | | of the State Guardian
shall assist the guardian in filing the | 15 | | report when requested by the
guardian. The court may take such | 16 | | action as it deems appropriate pursuant
to the report.
| 17 | | (c) Absent court order pursuant to the Illinois Power of | 18 | | Attorney Act
directing a guardian to exercise powers of the | 19 | | principal under an agency
that survives disability, the | 20 | | guardian has no power, duty, or liability
with respect to any | 21 | | personal or health care matters covered by the agency.
This | 22 | | subsection (c) applies to all agencies, whenever and wherever | 23 | | executed.
| 24 | | (d) A guardian acting as a surrogate decision maker under | 25 | | the Health
Care Surrogate Act shall have all the rights of a | 26 | | surrogate under that Act
without court order including the |
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| 1 | | right to make medical treatment decisions
such as decisions to | 2 | | forgo or withdraw life-sustaining treatment.
Any decisions by | 3 | | the guardian to forgo or withdraw life-sustaining treatment
| 4 | | that are not authorized under the Health Care Surrogate Act | 5 | | shall require a
court order. Nothing in this Section shall | 6 | | prevent an agent acting under a
power of attorney for health | 7 | | care from exercising his or her authority under
the Illinois | 8 | | Power of Attorney Act without further court order, unless a | 9 | | court
has acted under Section 2-10 of the Illinois Power of | 10 | | Attorney Act. If a
guardian is also a health care agent for the | 11 | | ward under a valid power of
attorney for health care, the | 12 | | guardian acting as agent may execute his or her
authority | 13 | | under that act without further court order.
| 14 | | (e) Decisions made by a guardian on behalf of a ward shall | 15 | | be made in
accordance with the following
standards for | 16 | | decision making. Decisions made by a guardian on behalf of a | 17 | | ward
may be made by conforming as closely as possible to what | 18 | | the ward, if
competent, would have done or intended under the | 19 | | circumstances, taking into
account evidence that includes, but | 20 | | is not limited to, the ward's personal,
philosophical, | 21 | | religious and moral beliefs, and ethical values relative to | 22 | | the
decision to be made by the guardian. Where possible, the | 23 | | guardian shall
determine how the ward would have made a | 24 | | decision based on the ward's
previously expressed preferences, | 25 | | and make decisions in accordance with the
preferences of the | 26 | | ward. If the ward's wishes are unknown and remain unknown
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| 1 | | after reasonable efforts to discern them, the decision shall | 2 | | be made on the
basis of the ward's best interests as determined | 3 | | by the guardian. In
determining the ward's best interests, the | 4 | | guardian shall weigh the reason for
and nature of the proposed | 5 | | action, the benefit or necessity of the action, the
possible | 6 | | risks and other consequences of the proposed action, and any | 7 | | available
alternatives and their risks, consequences and | 8 | | benefits, and shall take into
account any other information, | 9 | | including the views of family and friends, that
the guardian | 10 | | believes the ward would have considered if able to act for | 11 | | herself
or himself.
| 12 | | (f) Upon petition by any interested person (including the | 13 | | standby or
short-term guardian), with such notice to | 14 | | interested persons as the court
directs and a finding by the | 15 | | court that it is in the best interests interest of the
person | 16 | | with a disability, the court may terminate or limit the | 17 | | authority of a standby or
short-term guardian or may enter | 18 | | such other orders as the court deems necessary
to provide for | 19 | | the best interests interest of the person with a disability. | 20 | | The petition
for termination or limitation of the authority of | 21 | | a standby or short-term
guardian may, but need not, be | 22 | | combined with a petition to have another
guardian appointed | 23 | | for the person with a disability. | 24 | | (g)(1) Unless there is a court order to the contrary, the | 25 | | guardian, consistent with the standards set forth in | 26 | | subsection (e) of this Section, shall use reasonable efforts |
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| 1 | | to notify the ward's known adult children, who have requested | 2 | | notification and provided contact information, of the ward's | 3 | | admission to a hospital , or hospice or palliative care | 4 | | program, the ward's death, and the arrangements for the | 5 | | disposition of the ward's remains. | 6 | | (2) If a guardian unreasonably prevents an adult child, | 7 | | spouse, adult grandchild, parent, or adult sibling of the ward | 8 | | from visiting the ward, the court, upon a verified petition, | 9 | | may order the guardian to permit visitation between the ward | 10 | | and the adult child, spouse, adult grandchild, parent, or | 11 | | adult sibling. In making its determination, the court shall | 12 | | consider the standards set forth in subsection (e) of this | 13 | | Section. The court shall not allow visitation if the court | 14 | | finds that the ward has capacity to evaluate and communicate | 15 | | decisions regarding visitation and expresses a desire not to | 16 | | have visitation with the petitioner. This subsection (g) does | 17 | | not apply to duly appointed public guardians or the Office of | 18 | | State Guardian.
| 19 | | (Source: P.A. 100-1054, eff. 1-1-19; 101-329, eff. 8-9-19.)
| 20 | | (755 ILCS 5/11a-17.1) | 21 | | Sec. 11a-17.1. Sterilization of ward. | 22 | | (a) A guardian of the person shall not consent to the | 23 | | sterilization of the ward without first obtaining an order | 24 | | from the court granting the guardian the authority to provide | 25 | | consent. For purposes of this Article XIa, "sterilization" |
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| 1 | | means any procedure that has as its purpose rendering the ward | 2 | | permanently incapable of reproduction; provided, however, that | 3 | | an order from the court is not required for a procedure that is | 4 | | medically necessary to preserve the life of the ward or to | 5 | | prevent serious impairment to the health of the ward and which | 6 | | may result in sterilization. | 7 | | (b) A guardian seeking authority to consent to the | 8 | | sterilization of the ward shall seek such authority by filing | 9 | | a verified motion. The verified motion shall allege facts | 10 | | which demonstrate that the proposed sterilization is warranted | 11 | | under subsection (f), (g) or (h) of this Section. The guardian | 12 | | ad litem will notify the ward of the motion in the manner set | 13 | | forth in subsection (c) of this Section. | 14 | | (c) Upon the filing of a verified motion for authority to | 15 | | consent to sterilization, the court shall appoint a guardian | 16 | | ad litem to report to the court consistent with the provisions | 17 | | of this Section. If the guardian ad litem is not a licensed | 18 | | attorney, he or she shall be qualified, by training or | 19 | | experience, to work with or advocate for persons with a | 20 | | developmental disability, mental illness, physical disability, | 21 | | or disability because of mental deterioration, depending on | 22 | | the type of disability of the ward that is alleged in the | 23 | | motion. The court may allow the guardian ad litem reasonable | 24 | | compensation. The guardian ad litem may consult with a person | 25 | | who by training or experience is qualified to work with | 26 | | persons with a developmental disability, mental illness, |
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| 1 | | physical disability, or disability because of mental | 2 | | deterioration, depending on the type of disability of the ward | 3 | | that is alleged. The guardian ad litem may also consult with | 4 | | health care providers knowledgeable about reproductive health | 5 | | matters including sterilization, other forms of contraception, | 6 | | and childbirth. Outside the presence of the guardian, the | 7 | | guardian ad litem shall personally observe the ward prior to | 8 | | the hearing and shall inform the ward orally and in writing of | 9 | | the contents of the verified motion for authority to consent | 10 | | to sterilization. Outside the presence of the guardian, the | 11 | | guardian ad litem shall also attempt to elicit the ward's | 12 | | position concerning the motion, and any other areas of inquiry | 13 | | deemed appropriate by the court. At or before the hearing, the | 14 | | guardian ad litem shall file a written report detailing his or | 15 | | her observations of the ward; the responses of the ward to any | 16 | | of the inquiries detailed in this Section; the opinion of the | 17 | | guardian ad litem and any other professionals with whom the | 18 | | guardian ad litem consulted concerning the ward's | 19 | | understanding of and desire for or objection to, as well as | 20 | | what is in the ward's best interests interest relative to, | 21 | | sterilization, other forms of contraception, and childbirth; | 22 | | and any other material issue discovered by the guardian ad | 23 | | litem. The guardian ad litem shall appear at the hearing and | 24 | | testify, and may present witnesses, as to any issues presented | 25 | | in his or her report. | 26 | | (d) The court (1) may appoint counsel for the ward if the |
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| 1 | | court finds that the interests of the ward will be best served | 2 | | by the appointment, and (2) shall appoint counsel upon the | 3 | | ward's request, if the ward is objecting to the proposed | 4 | | sterilization, or if the ward takes a position adverse to that | 5 | | of the guardian ad litem. The ward shall be permitted to obtain | 6 | | the appointment of counsel either at the hearing or by any | 7 | | written or oral request communicated to the court prior to the | 8 | | hearing. The court shall inform the ward of this right to | 9 | | obtain appointed counsel. The court may allow counsel for the | 10 | | ward reasonable compensation. | 11 | | (e) The court shall order a medical and psychological | 12 | | evaluation of the ward. The evaluation shall address the | 13 | | ward's decision-making decision making capacity with respect | 14 | | to the proposed sterilization, the existence of any less | 15 | | permanent alternatives, and any other material issue. | 16 | | (f) The court shall determine, as a threshold inquiry, | 17 | | whether the ward has capacity to consent or withhold consent | 18 | | to the proposed sterilization and, if the ward lacks such | 19 | | capacity, whether the ward is likely to regain such capacity. | 20 | | The ward shall not be deemed to lack such capacity solely on | 21 | | the basis of the adjudication of disability and appointment of | 22 | | a guardian. In determining capacity, the court shall consider | 23 | | whether the ward is able, after being provided appropriate | 24 | | information, to understand the relationship between sexual | 25 | | activity and reproduction; the consequences of reproduction; | 26 | | and the nature and consequences of the proposed sterilization |
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| 1 | | procedure. If the court finds that (1) the ward has capacity to | 2 | | consent or withhold consent to the proposed sterilization, and | 3 | | (2) the ward objects or consents to the procedure, the court | 4 | | shall enter an order consistent with the ward's objection or | 5 | | consent and the proceedings on the verified motion shall be | 6 | | terminated. | 7 | | (g) If the court finds that the ward does not have capacity | 8 | | to consent or withhold consent to the proposed sterilization | 9 | | and is unlikely to regain such capacity, the court shall | 10 | | determine whether the ward is expressing a clear desire for | 11 | | the proposed sterilization. If the ward is expressing a clear | 12 | | desire for the proposed sterilization, the court's decision | 13 | | regarding the proposed sterilization shall be made in | 14 | | accordance with the standards set forth in subsection (e) of | 15 | | Section 11a-17 of this Act. | 16 | | (h) If the court finds that the ward does not have capacity | 17 | | to consent or withhold consent to the proposed sterilization | 18 | | and is unlikely to regain such capacity, and that the ward is | 19 | | not expressing a clear desire for the proposed sterilization, | 20 | | the court shall consider the standards set forth in subsection | 21 | | (e) of Section 11a-17 of this Act and enter written findings of | 22 | | fact and conclusions of law addressing those standards. In | 23 | | addition, the court shall not authorize the guardian to | 24 | | consent to the proposed sterilization unless the court finds, | 25 | | by clear and convincing evidence and based on written findings | 26 | | of fact and conclusions of law, that all of the following |
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| 1 | | factors are present: | 2 | | (1) The ward lacks decisional capacity regarding the | 3 | | proposed sterilization. | 4 | | (2) The ward is fertile and capable of procreation. | 5 | | (3) The benefits to the ward of the proposed | 6 | | sterilization outweigh the harm. | 7 | | (4) The court has considered less intrusive | 8 | | alternatives and found them to be inadequate in this case. | 9 | | (5) The proposed sterilization is in the best | 10 | | interests interest of the ward. In considering the ward's | 11 | | best interests interest , the court shall consider the | 12 | | following factors: | 13 | | (A) The possibility that the ward will experience | 14 | | trauma or
psychological damage if he or she has a child | 15 | | and, conversely, the
possibility of trauma or | 16 | | psychological damage from the proposed
sterilization. | 17 | | (B) The ward is or is likely to become sexually | 18 | | active. | 19 | | (C) The inability of the ward to understand | 20 | | reproduction or
contraception and the likely | 21 | | permanence of that inability. | 22 | | (D) Any other factors that assist the court in | 23 | | determining the best interests
interest of the ward | 24 | | relative to the proposed sterilization.
| 25 | | (Source: P.A. 96-272, eff. 1-1-10.)
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| 1 | | (755 ILCS 5/11a-18) (from Ch. 110 1/2, par. 11a-18)
| 2 | | Sec. 11a-18. Duties of the estate guardian.
| 3 | | (a) To the extent
specified in the order establishing the | 4 | | guardianship, the guardian of
the estate shall have the care, | 5 | | management and
investment of the estate, shall manage the | 6 | | estate frugally and shall
apply the income and principal of | 7 | | the estate so far as necessary for the
comfort and suitable | 8 | | support and education of the ward, his minor and adult
| 9 | | dependent children, and persons related by blood or marriage
| 10 | | who are dependent upon or entitled to support from him, or for | 11 | | any other
purpose which the court deems to be for the best | 12 | | interests of the ward,
and the court may approve the making on | 13 | | behalf of the ward of such
agreements as the court determines | 14 | | to be for the ward's best interests.
The guardian may make | 15 | | disbursement of his ward's
funds and estate directly to the | 16 | | ward or other distributee or in such
other manner and in such | 17 | | amounts as the court directs. If the estate of
a ward is | 18 | | derived in whole or in part from payments of compensation,
| 19 | | adjusted compensation, pension, insurance or other similar | 20 | | benefits made
directly to the estate by the Veterans | 21 | | Administration, notice of the
application for leave to invest | 22 | | or expend the ward's funds or estate,
together with a copy of | 23 | | the petition and proposed order, shall be given
to the | 24 | | Veterans' Administration Regional Office in this State at | 25 | | least 7
days before the hearing on the application.
| 26 | | (a-5) The probate court, upon petition of a guardian, |
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| 1 | | other than the
guardian of a minor, and after notice to all | 2 | | other persons interested as the
court directs, may authorize | 3 | | the guardian to exercise any or all powers over
the estate and | 4 | | business affairs of the ward that the ward could exercise if
| 5 | | present and not under disability. The court may authorize the | 6 | | taking of an
action or the application of funds not required | 7 | | for the ward's current and
future maintenance
and support in | 8 | | any manner approved by the court as being in keeping with the
| 9 | | ward's wishes so far as they can be ascertained. The court must | 10 | | consider the
permanence of the ward's disabling condition and | 11 | | the natural objects of the
ward's bounty. In ascertaining and | 12 | | carrying
out the ward's wishes the court may consider, but | 13 | | shall not be limited to,
minimization of State or federal | 14 | | income, estate, or inheritance taxes; and
providing gifts to | 15 | | charities, relatives, and friends that would be likely
| 16 | | recipients of donations from the ward. The ward's wishes as | 17 | | best they can be
ascertained shall be carried out, whether or | 18 | | not tax savings are involved.
Actions or applications of funds | 19 | | may include, but shall not be limited to, the
following:
| 20 | | (1) making gifts of income or principal, or both, of | 21 | | the estate, either
outright or in trust;
| 22 | | (2) conveying, releasing, or disclaiming his or her | 23 | | contingent and
expectant interests in property, including | 24 | | marital property rights and any
right of survivorship | 25 | | incident to joint tenancy or tenancy by the entirety;
| 26 | | (3) releasing or disclaiming his or her powers as |
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| 1 | | trustee, personal
representative, custodian for minors, or | 2 | | guardian;
| 3 | | (4) exercising, releasing, or disclaiming his or her | 4 | | powers as donee
of a power of appointment;
| 5 | | (5) entering into contracts;
| 6 | | (6) creating for the benefit of the ward or others, | 7 | | revocable or
irrevocable trusts of his or her property | 8 | | that may extend beyond his or her
disability or life;
| 9 | | (7) exercising options of the ward to purchase or | 10 | | exchange
securities or other property;
| 11 | | (8) exercising the rights of the ward to elect benefit | 12 | | or payment
options, to terminate, to change beneficiaries | 13 | | or ownership, to assign
rights, to borrow, or to receive | 14 | | cash value in return for a surrender of
rights under any | 15 | | one or more of the following:
| 16 | | (i) life insurance policies, plans, or benefits,
| 17 | | (ii) annuity policies, plans, or benefits,
| 18 | | (iii) mutual fund and other dividend investment | 19 | | plans,
| 20 | | (iv) retirement, profit sharing, and employee | 21 | | welfare plans and
benefits;
| 22 | | (9) exercising his or her right to claim or disclaim | 23 | | an elective share
in the estate of his or her deceased | 24 | | spouse and to renounce any interest by
testate or | 25 | | intestate succession or by inter vivos transfer;
| 26 | | (10) changing the ward's residence or domicile; or
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| 1 | | (11) modifying by means of codicil or trust amendment | 2 | | the terms of the
ward's will or any revocable trust | 3 | | created by the ward, as the court may
consider advisable | 4 | | in light of changes in applicable tax laws.
| 5 | | The guardian in his or her petition shall briefly outline | 6 | | the action or
application of funds for which he or she seeks | 7 | | approval, the results expected
to be accomplished thereby, and | 8 | | the tax savings, if any, expected to accrue.
The proposed | 9 | | action or application of funds may include gifts of the ward's
| 10 | | personal property or real estate, but transfers of real estate | 11 | | shall be subject
to the requirements of Section 20 of this Act. | 12 | | Gifts may be for
the benefit of prospective legatees, | 13 | | devisees, or heirs apparent of the ward
or may be made to | 14 | | individuals or charities in which the ward is believed to
have | 15 | | an interest. The guardian shall also indicate in the petition | 16 | | that any
planned disposition is consistent with the intentions | 17 | | of the ward insofar as
they can be ascertained, and if the | 18 | | ward's intentions cannot be ascertained,
the ward will be | 19 | | presumed to favor reduction in the incidents of various forms
| 20 | | of taxation and the partial distribution of his or her estate | 21 | | as provided in
this subsection. The guardian shall not, | 22 | | however, be required to include as
a beneficiary or fiduciary | 23 | | any person who he has reason to believe would be
excluded by | 24 | | the ward. A guardian shall be required to investigate and | 25 | | pursue
a ward's eligibility for governmental benefits.
| 26 | | (a-6) The guardian may, without an order of court, open, |
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| 1 | | maintain, and transfer funds to an ABLE account on behalf of | 2 | | the ward and the ward's minor and adult dependent children as | 3 | | specified under Section 16.6 of the State Treasurer Act. | 4 | | (b) Upon the direction of the court which issued his | 5 | | letters,
a guardian may perform the contracts of his ward | 6 | | which were
legally subsisting at the time of the commencement | 7 | | of the ward's
disability. The court may authorize the guardian | 8 | | to execute and deliver
any bill of sale, deed or other | 9 | | instrument.
| 10 | | (c) The guardian of the estate of a ward shall
appear for | 11 | | and represent the ward in all legal proceedings unless another
| 12 | | person is appointed for that purpose as guardian or next | 13 | | friend. This does not
impair the power of any court to appoint | 14 | | a guardian ad litem or next friend
to defend the interests of | 15 | | the ward in that court, or to appoint or allow any
person as | 16 | | the next friend of a ward to commence, prosecute or defend any
| 17 | | proceeding in his behalf. Without impairing the power of the | 18 | | court in any
respect, if the guardian of the estate of a ward | 19 | | and another person as next
friend shall appear for and | 20 | | represent the ward in a legal proceeding in which
the | 21 | | compensation of the attorney or attorneys representing the | 22 | | guardian and
next friend is solely determined under a | 23 | | contingent fee arrangement, the
guardian of the estate of the | 24 | | ward shall not participate in or have any duty
to review the | 25 | | prosecution of the action, to participate in or review the
| 26 | | appropriateness of any settlement of the action, or to |
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| 1 | | participate in or review
any determination of the | 2 | | appropriateness of any fees awarded to the attorney or
| 3 | | attorneys employed in the prosecution of the action.
| 4 | | (d) Adjudication of disability shall not revoke or
| 5 | | otherwise terminate a trust which is revocable by the ward. A | 6 | | guardian of the
estate shall have no authority to revoke a | 7 | | trust that is revocable by the
ward, except that the court may | 8 | | authorize a guardian to revoke a Totten trust
or similar | 9 | | deposit or withdrawable capital account in trust to the extent
| 10 | | necessary to provide funds for the purposes specified in | 11 | | paragraph (a) of
this Section. If the trustee of any trust for | 12 | | the benefit of the ward has
discretionary power to apply | 13 | | income or principal for the ward's benefit,
the trustee shall | 14 | | not be required to distribute any of the income or principal
to | 15 | | the guardian of the ward's estate, but the guardian may
bring | 16 | | an action on behalf of the ward to compel
the trustee to | 17 | | exercise the trustee's discretion or to seek relief from
an | 18 | | abuse of discretion. This paragraph shall not limit the right | 19 | | of a
guardian of the estate to receive accountings from the | 20 | | trustee
on behalf of the ward.
| 21 | | (d-5) Upon a verified petition by the plenary or limited | 22 | | guardian of the estate or the request of the ward that is | 23 | | accompanied by a current physician's report that states the | 24 | | ward possesses testamentary capacity, the court may enter an | 25 | | order authorizing the ward to execute a will or codicil. In so | 26 | | ordering, the court shall authorize the guardian to retain |
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| 1 | | independent counsel for the ward with whom the ward may | 2 | | execute or modify a will or codicil. | 3 | | (e) Absent court order pursuant to the Illinois Power of | 4 | | Attorney
Act directing a guardian to exercise
powers of the | 5 | | principal under an agency that survives disability, the
| 6 | | guardian will have no power, duty or liability with respect to | 7 | | any property
subject to the agency. This subsection (e) | 8 | | applies to all agencies,
whenever and wherever executed.
| 9 | | (f) Upon petition by any interested person (including the | 10 | | standby or
short-term guardian), with such notice to | 11 | | interested persons as the court
directs and a finding by the | 12 | | court that it is in the best interests interest of the
person | 13 | | with a disability, the court may terminate or limit the | 14 | | authority of a standby or
short-term guardian or may enter | 15 | | such other orders as the court deems necessary
to provide for | 16 | | the best interests interest of the person with a disability. | 17 | | The petition for
termination or limitation of the authority of | 18 | | a standby or short-term guardian
may, but need not, be | 19 | | combined with a petition to have another guardian
appointed | 20 | | for the person with a disability.
| 21 | | (Source: P.A. 101-329, eff. 8-9-19.)
| 22 | | (755 ILCS 5/11a-18.3)
| 23 | | Sec. 11a-18.3. Duties of short-term guardian of a person | 24 | | with a disability.
| 25 | | (a) Immediately upon the effective date of the appointment |
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| 1 | | of a short-term
guardian, the short-term guardian shall assume | 2 | | all duties as short-term
guardian of the person with a | 3 | | disability as provided in this Section. The short-term
| 4 | | guardian of the person shall have authority to act as | 5 | | short-term guardian,
without direction of the court, for the | 6 | | duration of the appointment, which in
no case shall exceed a | 7 | | cumulative total of 60 days in any 12-month 12 month period for
| 8 | | all short-term guardians appointed by the guardian. The | 9 | | authority of the
short-term guardian may be limited or | 10 | | terminated by a court of competent
jurisdiction.
| 11 | | (b) Unless further specifically limited by the instrument | 12 | | appointing the
short-term guardian, a short-term guardian | 13 | | shall have the authority to act as a
guardian of the person of | 14 | | a person with a disability as prescribed in Section 11a-17,
| 15 | | but shall not have any authority to act as guardian of the | 16 | | estate of a person with a disability, except that a short-term | 17 | | guardian shall have the authority to apply for
and receive on | 18 | | behalf of the person with a disability benefits to which the | 19 | | person with a disability may be entitled from or under | 20 | | federal, State, or local organizations or
programs.
| 21 | | (Source: P.A. 99-143, eff. 7-27-15.)
| 22 | | (755 ILCS 5/11a-19) (from Ch. 110 1/2, par. 11a-19)
| 23 | | Sec. 11a-19. Notice of right to seek modification. At the | 24 | | time of
the appointment of a guardian the court shall inform | 25 | | the ward of his
right under Section 11a-20 to petition for |
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| 1 | | termination
of adjudication of disability, revocation of the | 2 | | letters of guardianship
of the estate or person, or both, or | 3 | | modification of the duties of the guardian
and shall give the | 4 | | ward a written statement explaining this right and the
| 5 | | procedures for petitioning the court.
The notice shall be in | 6 | | large , bold type and shall be in a format substantially | 7 | | similar to
the following: notice of rights required under | 8 | | subsection (e) of Section 11a-10 of this
Act.
| 9 | | IN THE CIRCUIT COURT OF THE ... JUDICIAL CIRCUIT OF ILLINOIS | 10 | | ... COUNTY | 11 | | IN RE THE ESTATE OF ) | 12 | | ) | 13 | | ....................., ) CASE NO. .... | 14 | | a Person with a Disability, ) | 15 | | NOTICE TO WARD OF RIGHT TO SEEK MODIFICATION | 16 | | [Insert name] was appointed your Guardian of the Person on | 17 | | [insert date]. | 18 | | [Insert name] was appointed your Guardian of the Estate on | 19 | | [insert date]. | 20 | | You have the right to ask the court to dismiss this | 21 | | guardianship, to revoke the power of this guardian to act for | 22 | | you, or to modify the duties of any such guardian. | 23 | | You, or someone on your behalf, can make this request, | 24 | | even by an informal letter, a telephone call, or a visit to the |
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| 1 | | court. You should send your letter to the court at the | 2 | | following address; [insert name of judge and mailing address | 3 | | of courthouse]. | 4 | | The court may appoint a Guardian ad Litem to investigate | 5 | | and report to the court. You have the right to have a lawyer | 6 | | appointed for you, to have a hearing before the court, to have | 7 | | a jury of six persons decide the facts, to present evidence and | 8 | | tell your story, and to ask witnesses any questions in | 9 | | cross-examination. | 10 | | Entered this.....day of.............., 20.... | 11 | | ................. | 12 | | JUDGE | 13 | | [..] At the time of the appointment of the Guardian in this | 14 | | cause, the court informed the ward of his or her rights under | 15 | | Section 11a-20 of the Illinois Probate Act and gave the ward, | 16 | | in open court, the above-written notice explaining these | 17 | | rights and procedures. | 18 | | or | 19 | | [..] The Clerk of the Circuit Court shall mail a copy of the | 20 | | above-written notice to the above-named person with a | 21 | | disability at the residence address set forth in the petition | 22 | | filed herein. |
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| 1 | | Copy Mailed: ................................................. | 2 | | ............................................................. | 3 | | Clerk of the Circuit Court | 4 | | [END OF FORM] | 5 | | (Source: P.A. 89-396, eff. 8-20-95.)
| 6 | | (755 ILCS 5/11a-20) (from Ch. 110 1/2, par. 11a-20)
| 7 | | Sec. 11a-20. Termination of adjudication of disability - | 8 | | Revocation
of letters - modification. ) | 9 | | (a) Except as provided in subsection (b-5), upon the | 10 | | filing of
a petition by or on behalf of a person with a | 11 | | disability or on its own motion, the
court may terminate the | 12 | | adjudication of disability of the ward, revoke the
letters of | 13 | | guardianship of the estate or person, or both, or modify the | 14 | | duties
of the guardian if the ward's capacity to perform the | 15 | | tasks necessary for
the care of his person or the management of | 16 | | his estate has been
demonstrated by clear and convincing | 17 | | evidence. A report or testimony by a
licensed physician is not | 18 | | a prerequisite for termination, revocation or
modification of | 19 | | a guardianship order under this subsection (a).
| 20 | | (b) Except as provided in subsection (b-5), a request by | 21 | | the ward or any other person on the ward's behalf,
under this | 22 | | Section may be communicated to the court or judge by any means,
| 23 | | including but not limited to informal letter, telephone call |
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| 1 | | or visit. Upon
receipt of a request from the ward or another | 2 | | person, the court may
appoint a guardian ad litem to | 3 | | investigate and report to the court
concerning the allegations | 4 | | made in conjunction with said request, and if
the ward wishes | 5 | | to terminate, revoke, or modify the guardianship order, to
| 6 | | prepare the ward's petition and to render such other services | 7 | | as the court
directs.
| 8 | | (b-5) Upon the filing of a verified petition by the | 9 | | guardian of the person with a disability or the person with a | 10 | | disability, the court may terminate the adjudication of | 11 | | disability of the ward, revoke the letters of guardianship of | 12 | | the estate or person, or both, or modify the duties of the | 13 | | guardian if: (i) a report completed in accordance with | 14 | | subsection (a) of Section 11a-9 states that the person with a | 15 | | disability is no longer in need of guardianship or that the | 16 | | type and scope of guardianship should be modified; (ii) the | 17 | | person with a disability no longer wishes to be under | 18 | | guardianship or desires that the type and scope of | 19 | | guardianship be modified; and (iii) the guardian of the person | 20 | | with a disability states that it is in the best interests | 21 | | interest of the person with a disability to terminate the | 22 | | adjudication of disability of the ward, revoke the letters of | 23 | | guardianship of the estate or person, or both, or modify the | 24 | | duties of the guardian, and provides the basis thereof. In a | 25 | | proceeding brought pursuant to this subsection (b-5), the | 26 | | court may terminate the adjudication of disability of the |
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| 1 | | ward, revoke the letters of guardianship of the estate or | 2 | | person, or both, or modify the duties of the guardian, unless | 3 | | it has been demonstrated by clear and convincing evidence that | 4 | | the ward is incapable of performing the tasks necessary for | 5 | | the care of his or her person or the management of his or her | 6 | | estate. | 7 | | (c) Notice of the hearing on a petition under this | 8 | | Section, together
with a copy of the petition, shall be given | 9 | | to the ward, unless he is the
petitioner, and to each and every | 10 | | guardian to whom letters of guardianship
have been issued and | 11 | | not revoked, not less than 14 days before the hearing.
| 12 | | (Source: P.A. 99-143, eff. 7-27-15.)
| 13 | | (755 ILCS 5/13-1) (from Ch. 110 1/2, par. 13-1)
| 14 | | Sec. 13-1. Appointment and term of public administrator | 15 | | and public guardian. )
| 16 | | (a) Except as provided in Section 13-1.1, before the first | 17 | | Monday of December,
1977 and every 4 years thereafter, and as | 18 | | often as vacancies occur, the
Governor, by and with the advice | 19 | | and consent of the Senate, shall
appoint in each county a | 20 | | suitable person to serve as public
administrator and a | 21 | | suitable person to serve as public guardian of the county.
The | 22 | | Governor may designate, without the advice and consent of the | 23 | | Senate, the Office of State Guardian as an interim public | 24 | | guardian to fill a vacancy in one or more counties having a | 25 | | population of 500,000 or less if the designation: |
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| 1 | | (1) is specifically designated as an interim | 2 | | appointment for a term of the lesser of one year or until | 3 | | the Governor appoints, with the advice and consent of the | 4 | | Senate, a county public guardian to fill the vacancy; | 5 | | (2) requires the Office of State Guardian to affirm | 6 | | its availability to act in the county; and | 7 | | (3) expires in a pending case of a person with a | 8 | | disability in the county at such a time as the court | 9 | | appoints a qualified successor guardian of the estate and | 10 | | person for the person with a disability. | 11 | | When appointed as an interim public guardian, the State | 12 | | Guardian will perform the powers and duties assigned under the | 13 | | Guardianship and Advocacy Act. | 14 | | The Governor may appoint the same person to serve as | 15 | | public guardian and public administrator in one or more | 16 | | counties. In considering the number of counties of service for | 17 | | any prospective public guardian or public administrator the | 18 | | Governor may consider the population of the county and the | 19 | | ability of the prospective public guardian or public | 20 | | administrator to travel to multiple counties and manage | 21 | | estates in multiple counties. Each person so appointed holds | 22 | | his office for
4 years from the first Monday of December, 1977 | 23 | | and every 4 years
thereafter or until his successor is | 24 | | appointed and qualified.
| 25 | | (b) Within 14 days of notification to the current public | 26 | | guardian of the appointment by the Governor of a new public |
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| 1 | | guardian pursuant to this Section, the outgoing public | 2 | | guardian shall provide the incoming successor public guardian | 3 | | with a list of current guardianships. Within 60 days of | 4 | | receipt of the list of guardianships, the incoming public | 5 | | guardian may petition the court for a transfer of a | 6 | | guardianship to the incoming public guardian. The transfer of | 7 | | a guardianship of the person, estate, or both shall be made if | 8 | | it is in the best interests of the ward as determined by the | 9 | | court on a case-by-case basis. | 10 | | Factors for the court to consider include, but are not | 11 | | limited to, the following: | 12 | | (1) the ward's preference as to the transfer of the | 13 | | guardianship; | 14 | | (2) the recommendation of the guardian ad litem, the | 15 | | ward's family members, and other interested parties; | 16 | | (3) the length of time in which the outgoing public | 17 | | guardian has served as guardian for the ward; | 18 | | (4) the ward's relationship with the outgoing public | 19 | | guardian's office; | 20 | | (5) the nature and extent of the ward's disabilities; | 21 | | (6) the ward's current residential placement, his or | 22 | | her current support network, and ongoing needs; | 23 | | (7) the costs involved in the transfer of the ward's | 24 | | estate; | 25 | | (8) the status of pending legal matters or other | 26 | | matters germane to the ward's care or the management of |
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| 1 | | the ward's estate; | 2 | | (9) the obligation to post bond and the cost thereof; | 3 | | (10) the guardians' status with regard to | 4 | | certification by the Center for Guardianship | 5 | | Certification; and | 6 | | (11) other good causes. | 7 | | If the court approves a transfer to the incoming public | 8 | | guardian, the outgoing public guardian shall file a final | 9 | | account of his or her activities on behalf of the ward within | 10 | | 30 days or within such other time that the court may allow. The | 11 | | outgoing public guardian may file a petition for final fees | 12 | | pursuant to subsection (b) of Section 13-3.1. | 13 | | (Source: P.A. 100-483, eff. 9-8-18 .)
| 14 | | (755 ILCS 5/18-10) (from Ch. 110 1/2, par. 18-10)
| 15 | | Sec. 18-10. Classification of claims against decedent's | 16 | | estate. All
claims against the estate of a decedent are | 17 | | divided into classes in the
manner following:
| 18 | | 1st: Funeral and burial expenses, expenses of | 19 | | administration, and
statutory custodial claims , and final fees | 20 | | and costs as determined by the court relating to guardianship, | 21 | | including fees awarded under Section 11a-13.5, 13-3, 13-3.1, | 22 | | 27-1, 27-2, or 27-4 . For the purposes of this paragraph, | 23 | | funeral and
burial expenses paid by any person, including a | 24 | | surviving spouse, are
funeral and burial expenses; and funeral | 25 | | and burial expenses include
reasonable amounts paid for a |
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| 1 | | burial space, crypt or niche, a marker on the
burial space, | 2 | | care of the burial space, crypt or niche, and interest on
these | 3 | | amounts. Interest on these amounts shall accrue beginning 60 | 4 | | days
after issuance of letters of office to the representative | 5 | | of the decedent's
estate, or if no such letters of office are | 6 | | issued, then beginning 60 days
after those amounts are due, up | 7 | | to the rate of 9% per annum as allowed by
contract or law.
| 8 | | 2nd: The surviving spouse's or child's award.
| 9 | | 3rd: Debts due the United States.
| 10 | | 4th: Reasonable and necessary medical, hospital, and | 11 | | nursing home expenses for the care of the decedent during the | 12 | | year immediately preceding death; and money due employees of | 13 | | the decedent of not more than $800 for each
claimant for | 14 | | services rendered within 4 months prior to the decedent's
| 15 | | death.
| 16 | | 5th: Money and property received or held in trust by | 17 | | decedent which
cannot be identified or traced.
| 18 | | 6th: Debts due this State and any county, township, city, | 19 | | town, village
or school district located within this State.
| 20 | | 7th: All other claims.
| 21 | | (Source: P.A. 100-1079, eff. 8-24-18.)
| 22 | | (755 ILCS 5/19-2) (from Ch. 110 1/2, par. 19-2)
| 23 | | Sec. 19-2. Lease, sale, mortgage or pledge of personal | 24 | | estate of ward. ) By leave
of court a representative may lease, | 25 | | sell, mortgage or pledge any personal estate of the
ward, when |
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| 1 | | in the opinion of the court it is for the best interests | 2 | | interest of the
ward or his estate.
| 3 | | (Source: P.A. 79-328.)
| 4 | | (755 ILCS 5/25-4) (from Ch. 110 1/2, par. 25-4)
| 5 | | Sec. 25-4. Sale of small real estate interest of ward. ) If | 6 | | the
interest of a ward in any parcel of real estate does not | 7 | | exceed $2,500
in value and a private sale thereof can be made | 8 | | for cash, the interest
may be sold as provided in this Section | 9 | | instead of as prescribed elsewhere
in this Act. The | 10 | | representative of the estate of the ward may file
a petition | 11 | | setting forth: (a) the description of the real estate, the | 12 | | interest
of the ward therein and the value of the interest | 13 | | sought to be sold; (b)
the name and post office address of the | 14 | | ward; (c) a private sale of the
ward's interest can be made for | 15 | | cash; and (d) it is for the
best interests interest of the ward | 16 | | that his interest in the real estate be sold.
Upon the filing | 17 | | of the petition the court
shall set it for hearing not less | 18 | | than 20 days thereafter. Not less
than 15 days before the date | 19 | | of hearing of the petition, the clerk of the court
shall mail a | 20 | | notice of the time and place of the hearing to the ward. No
| 21 | | guardian ad litem need be appointed for the ward unless the | 22 | | court finds
it necessary for the ward's protection. If on the | 23 | | hearing the court finds that
the ward's interest in the real | 24 | | estate to be sold
does not exceed $2,500 in value, a private | 25 | | sale of the ward's interest can
be made for cash and it is for |
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| 1 | | the best interests interest of the ward that the
sale be made, | 2 | | the court shall direct the petitioner to sell the
ward's | 3 | | interest at private sale for cash for such price as the court | 4 | | determines
and upon receipt of the purchase price to execute | 5 | | and deliver a deed to the
purchaser. The court shall require | 6 | | the representative to furnish a bond conditioned
upon his | 7 | | disposing of the proceeds of sale in the manner required by | 8 | | law, and with
or without sureties and in such amount as the | 9 | | court directs; and
it is the duty of the representative to file | 10 | | the bond in and have it approved
by the court.
| 11 | | (Source: P.A. 79-328.)
| 12 | | (755 ILCS 5/27-1) (from Ch. 110 1/2, par. 27-1)
| 13 | | Sec. 27-1. Fees of representative. A representative is | 14 | | entitled to
reasonable compensation for his services, but no | 15 | | fees, charges or other
compensation may be allowed a public | 16 | | administrator for services
performed in administering that | 17 | | part of the estate of any United States
war veteran which | 18 | | consists of compensation, insurance or other monies
due or | 19 | | payable from the United States because of the veteran's war
| 20 | | service. No fees, charges or other compensation may be allowed | 21 | | an employee of
the Department of Human Services or the | 22 | | Department of Children and Family
Services designated
under | 23 | | paragraph (b) of Section 11-3 for services as guardian of the | 24 | | estate of
a patient or resident in a State mental
health or | 25 | | developmental disabilities facility or other State
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| 1 | | institution. Fees awarded under this Section shall be | 2 | | considered as a first-class claim for administrative expenses | 3 | | and paid from the guardianship estate or from the probate | 4 | | estate pursuant to Section 18-10. Fees awarded to guardians | 5 | | shall be consistent with Section 11a-13.5.
| 6 | | (Source: P.A. 89-507, eff. 7-1-97.)
| 7 | | Section 10. The Illinois Power of Attorney Act is amended | 8 | | by changing Section 2-10 as follows:
| 9 | | (755 ILCS 45/2-10) (from Ch. 110 1/2, par. 802-10)
| 10 | | Sec. 2-10. Agency-court relationship. | 11 | | (a) Upon petition by any interested
person (including the | 12 | | agent), with such notice to interested persons as the
court | 13 | | directs and a finding by the court that the principal
lacks | 14 | | either the capacity to control or the capacity to revoke the | 15 | | agency, the court may construe a power of attorney, review the | 16 | | agent's conduct, and grant appropriate relief including | 17 | | compensatory damages. | 18 | | (b) If the court finds
that the agent is not acting for the | 19 | | benefit of the principal in accordance
with the terms of the | 20 | | agency or that the agent's action or inaction has
caused or | 21 | | threatens substantial harm to the principal's person or | 22 | | property
in a manner not authorized or intended by the | 23 | | principal, the court may
order a guardian of the principal's | 24 | | person or estate to exercise any powers
of the principal under |
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| 1 | | the agency, including the power to revoke the
agency, or may | 2 | | enter such other orders without appointment of a guardian as
| 3 | | the court deems necessary to provide for the best interests of | 4 | | the
principal. | 5 | | (c) If the court finds that the agency requires
| 6 | | interpretation, the court may construe the agency and instruct | 7 | | the agent,
but the court may not amend the agency. | 8 | | (d) If the court finds that the agent has not acted for the | 9 | | benefit of the principal in accordance with the terms of the | 10 | | agency and the Illinois Power of Attorney Act, or that the | 11 | | agent's action caused or threatened substantial harm to the | 12 | | principal's person or property in a manner not authorized or | 13 | | intended by the principal, then the agent shall not be | 14 | | authorized to pay or be reimbursed from the estate of the | 15 | | principal the attorneys' fees and costs of the agent in | 16 | | defending a proceeding brought pursuant to this Section. | 17 | | (e) Upon a finding that the agent's action has caused | 18 | | substantial harm to the principal's person or property, the | 19 | | court may assess against the agent reasonable costs and | 20 | | attorney's fees to a prevailing party who is a provider agency | 21 | | as defined in Section 2 of the Adult Protective Services Act, a | 22 | | representative of the Office of the State Long Term Care | 23 | | Ombudsman, the State Guardian, a public guardian, or a | 24 | | governmental agency having regulatory authority to protect the | 25 | | welfare of the principal. | 26 | | (f) As used in this Section, the term "interested person" |
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| 1 | | includes (1) the principal or the agent; (2) a guardian of the | 2 | | person, guardian of the estate, or other fiduciary charged | 3 | | with management of the principal's property; (3) the | 4 | | principal's spouse, parent, or descendant; (4) a person who | 5 | | would be a presumptive heir-at-law of the principal; (5) a | 6 | | person named as a beneficiary to receive any property, | 7 | | benefit, or contractual right upon the principal's death, or | 8 | | as a beneficiary of a trust created by or for the principal; | 9 | | (6) a provider agency as defined in Section 2 of the Adult | 10 | | Protective Services Act, a representative of the Office of the | 11 | | State Long Term Care Ombudsman, the State Guardian, a public | 12 | | guardian, or a governmental agency having regulatory authority | 13 | | to protect the welfare of the principal; and (7) the | 14 | | principal's caregiver or another person who demonstrates | 15 | | sufficient interest in the principal's welfare. | 16 | | (g) Absent court order directing a
guardian to exercise | 17 | | powers of the principal under the agency, a guardian
will have | 18 | | no power, duty or liability with respect to any property | 19 | | subject
to the agency or any personal or health care matters | 20 | | covered by the agency. If an agent seeks guardianship of the | 21 | | principal pursuant to the Probate Act of 1975, the petition | 22 | | for guardianship must delineate the specific powers to be | 23 | | granted to the guardian that are not already included in the | 24 | | power of attorney. The petition for temporary, limited, or | 25 | | plenary guardianship of the principal under the Probate Act of | 26 | | 1975 may include a prayer for relief to suspend a power of |
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| 1 | | attorney or to revoke a power of attorney in accordance with | 2 | | subsection (b). | 3 | | (h)
Proceedings under this Section shall be commenced in | 4 | | the county where the
guardian was appointed or, if no Illinois | 5 | | guardian is acting, then in the
county where the agent or | 6 | | principal resides or where the principal owns real property.
| 7 | | (i) This Section shall not be construed to limit any other | 8 | | remedies available. | 9 | | (Source: P.A. 98-49, eff. 7-1-13; 98-562, eff. 8-27-13; | 10 | | 98-756, eff. 7-16-14.)
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| 1 | |
INDEX
| 2 | |
Statutes amended in order of appearance
| | 3 | | 755 ILCS 5/11a-1 | from Ch. 110 1/2, par. 11a-1 | | 4 | | 755 ILCS 5/11a-3 | from Ch. 110 1/2, par. 11a-3 | | 5 | | 755 ILCS 5/11a-3.1 | | | 6 | | 755 ILCS 5/11a-3.2 | | | 7 | | 755 ILCS 5/11a-4 | from Ch. 110 1/2, par. 11a-4 | | 8 | | 755 ILCS 5/11a-5 | from Ch. 110 1/2, par. 11a-5 | | 9 | | 755 ILCS 5/11a-8 | from Ch. 110 1/2, par. 11a-8 | | 10 | | 755 ILCS 5/11a-10 | from Ch. 110 1/2, par. 11a-10 | | 11 | | 755 ILCS 5/11a-10.1 | from Ch. 110 1/2, par. 11a-10.1 | | 12 | | 755 ILCS 5/11a-12 | from Ch. 110 1/2, par. 11a-12 | | 13 | | 755 ILCS 5/11a-13.5 new | | | 14 | | 755 ILCS 5/11a-17 | from Ch. 110 1/2, par. 11a-17 | | 15 | | 755 ILCS 5/11a-17.1 | | | 16 | | 755 ILCS 5/11a-18 | from Ch. 110 1/2, par. 11a-18 | | 17 | | 755 ILCS 5/11a-18.3 | | | 18 | | 755 ILCS 5/11a-19 | from Ch. 110 1/2, par. 11a-19 | | 19 | | 755 ILCS 5/11a-20 | from Ch. 110 1/2, par. 11a-20 | | 20 | | 755 ILCS 5/13-1 | from Ch. 110 1/2, par. 13-1 | | 21 | | 755 ILCS 5/18-10 | from Ch. 110 1/2, par. 18-10 | | 22 | | 755 ILCS 5/19-2 | from Ch. 110 1/2, par. 19-2 | | 23 | | 755 ILCS 5/25-4 | from Ch. 110 1/2, par. 25-4 | | 24 | | 755 ILCS 5/27-1 | from Ch. 110 1/2, par. 27-1 | | 25 | | 755 ILCS 45/2-10 | from Ch. 110 1/2, par. 802-10 |
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