Illinois General Assembly - Full Text of HB5686
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Full Text of HB5686  98th General Assembly

HB5686enr 98TH GENERAL ASSEMBLY

  
  
  

 


 
HB5686 EnrolledLRB098 20113 ZMM 55402 b

1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Probate Act of 1975 is amended by changing
5Sections 11-5, 11-5.4, 11-8, 11-8.1, 11-10.1, and 11-13 as
6follows:
 
7    (755 ILCS 5/11-5)  (from Ch. 110 1/2, par. 11-5)
8    Sec. 11-5. Appointment of guardian.
9    (a) Upon the filing of a petition for the appointment of a
10guardian or on its own motion, the court may appoint a guardian
11of the estate or of both the person and estate, of a minor, or
12may appoint a guardian of the person only of a minor or minors,
13as the court finds to be in the best interest of the minor or
14minors.
15    (a-1) A parent, adoptive parent or adjudicated parent,
16whose parental rights have not been terminated, may designate
17in any writing, including a will, a person qualified to act
18under Section 11-3 to be appointed as guardian of the person or
19estate, or both, of an unmarried minor or of a child likely to
20be born. A parent, adoptive parent or adjudicated parent, whose
21parental rights have not been terminated, or a guardian or a
22standby guardian of an unmarried minor or of a child likely to
23be born may designate in any writing, including a will, a

 

 

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1person qualified to act under Section 11-3 to be appointed as
2successor guardian of the minor's person or estate, or both.
3The designation must be witnessed by 2 or more credible
4witnesses at least 18 years of age, neither of whom is the
5person designated as the guardian. The designation may be
6proved by any competent evidence. If the designation is
7executed and attested in the same manner as a will, it shall
8have prima facie validity. The designation of a guardian or
9successor guardian does not affect the rights of the other
10parent in the minor.
11    (b) The court lacks jurisdiction to proceed on a petition
12for the appointment of a guardian of a minor if it finds that
13(i) the minor has a living parent, adoptive parent or
14adjudicated parent, whose parental rights have not been
15terminated, whose whereabouts are known, and who is willing and
16able to make and carry out day-to-day child care decisions
17concerning the minor, unless: (1) the parent or parents
18voluntarily relinquished physical custody of the minor; (2)
19after receiving notice of the hearing under Section 11-10.1,
20the parent or parents fail to object to the appointment at the
21hearing on the petition; or (3) the parent or parents consent
22to the appointment as evidenced by a written document that has
23been notarized and dated, or by a personal appearance and
24consent in open court; or (ii) there is a guardian for the
25minor appointed by a court of competent jurisdiction. There
26shall be a rebuttable presumption that a parent of a minor is

 

 

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1willing and able to make and carry out day-to-day child care
2decisions concerning the minor, but the presumption may be
3rebutted by a preponderance of the evidence. If a short-term
4guardian has been appointed for the minor prior to the filing
5of the petition and the petitioner for guardianship is not the
6short-term guardian, there shall be a rebuttable presumption
7that it is in the best interest of the minor to remain in the
8care of the short-term guardian. The petitioner shall have the
9burden of proving by a preponderance of the evidence that it is
10not in the child's best interest to remain with the short-term
11guardian.
12    (b-1) If the court finds the appointment of a guardian of
13the minor to be in the best interest of the minor, and if a
14standby guardian has previously been appointed for the minor
15under Section 11-5.3, the court shall appoint the standby
16guardian as the guardian of the person or estate, or both, of
17the minor unless the court finds, upon good cause shown, that
18the appointment would no longer be in the best interest of the
19minor.
20    (c) If the minor is 14 years of age or more, the minor may
21nominate the guardian of the minor's person and estate, subject
22to approval of the court. If the minor's nominee is not
23approved by the court or if, after notice to the minor, the
24minor fails to nominate a guardian of the minor's person or
25estate, the court may appoint the guardian without nomination.
26    (d) The court shall not appoint as guardian of the person

 

 

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1of the minor any person whom the court has determined had
2caused or substantially contributed to the minor becoming a
3neglected or abused minor as defined in the Juvenile Court Act
4of 1987, unless 2 years have elapsed since the last proven
5incident of abuse or neglect and the court determines that
6appointment of such person as guardian is in the best interests
7of the minor.
8    (e) Previous statements made by the minor relating to any
9allegations that the minor is an abused or neglected child
10within the meaning of the Abused and Neglected Child Reporting
11Act, or an abused or neglected minor within the meaning of the
12Juvenile Court Act of 1987, shall be admissible in evidence in
13a hearing concerning appointment of a guardian of the person or
14estate of the minor. No such statement, however, if
15uncorroborated and not subject to cross-examination, shall be
16sufficient in itself to support a finding of abuse or neglect.
17(Source: P.A. 96-1338, eff. 1-1-11.)
 
18    (755 ILCS 5/11-5.4)
19    Sec. 11-5.4. Short-term guardian.
20    (a) A parent, adoptive parent, or adjudicated parent whose
21parental rights have not been terminated, or the guardian of
22the person of a minor may appoint in writing, without court
23approval, a short-term guardian of an unmarried minor or a
24child likely to be born. The written instrument appointing a
25short-term guardian shall be dated and shall identify the

 

 

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1appointing parent or guardian, the minor, and the person
2appointed to be the short-term guardian. The written instrument
3shall be signed by, or at the direction of, the appointing
4parent in the presence of at least 2 credible witnesses at
5least 18 years of age, neither of whom is the person appointed
6as the short-term guardian. The person appointed as the
7short-term guardian shall also sign the written instrument, but
8need not sign at the same time as the appointing parent.
9    (b) A parent or guardian shall not appoint a short-term
10guardian of a minor if the minor has another living parent,
11adoptive parent or adjudicated parent, whose parental rights
12have not been terminated, whose whereabouts are known, and who
13is willing and able to make and carry out day-to-day child care
14decisions concerning the minor, unless the nonappointing
15parent consents to the appointment by signing the written
16instrument of appointment.
17    (c) The appointment of the short-term guardian is effective
18immediately upon the date the written instrument is executed,
19unless the written instrument provides for the appointment to
20become effective upon a later specified date or event. Except
21as provided in subsection (e-5) of this Section, the short-term
22guardian shall have authority to act as guardian of the minor
23as provided in Section 11-13.2 for a period of 365 days from
24the date the appointment is effective, unless the written
25instrument provides for the appointment to terminate upon an
26earlier specified date or event. Only one written instrument

 

 

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1appointing a short-term guardian may be in force at any given
2time.
3    (d) Every appointment of a short-term guardian may be
4amended or revoked by the appointing parent or by the
5appointing guardian of the person of the minor at any time and
6in any manner communicated to the short-term guardian or to any
7other person. Any person other than the short-term guardian to
8whom a revocation or amendment is communicated or delivered
9shall make all reasonable efforts to inform the short-term
10guardian of that fact as promptly as possible.
11    (e) The appointment of a short-term guardian or successor
12short-term guardian does not affect the rights of the other
13parent in the minor. The short-term guardian appointment does
14not constitute consent for court appointment of a guardian.
15    (e-5) Any time after the appointment of a temporary
16custodian under Section 2-10, 3-12, 4-9, 5-410, or 5-501 of the
17Juvenile Court Act of 1987, and after notice to all parties,
18including the short-term guardian, as required by the Juvenile
19Court Act of 1987, a court may vacate any short-term
20guardianship for the minor appointed under this Section,
21provided the vacation is consistent with the minor's best
22interests as determined using the factors listed in paragraph
23(4.05) of Section 1-3 of the Juvenile Court Act of 1987.
24    (f) The written instrument appointing a short-term
25guardian may, but need not, be in the following form:
 

 

 

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1
APPOINTMENT OF SHORT-TERM GUARDIAN

 
2    
[IT IS IMPORTANT TO READ THE FOLLOWING INSTRUCTIONS:
3    By properly completing this form, a parent or the guardian
4of the person of the child is appointing a guardian of a child
5of the parent (or a minor ward of the guardian, as the case may
6be) for a period of up to 365 days. A separate form should be
7completed for each child. The person appointed as the guardian
8must sign the form, but need not do so at the same time as the
9parent or parents or guardian.
10    This form may not be used to appoint a guardian if there is
11a guardian already appointed for the child, except that if a
12guardian of the person of the child has been appointed, that
13guardian may use this form to appoint a short-term guardian.
14Both living parents of a child may together appoint a guardian
15of the child, or the guardian of the person of the child may
16appoint a guardian of the child, for a period of up to 365 days
17through the use of this form. If the short-term guardian is
18appointed by both living parents of the child, the parents need
19not sign the form at the same time.]
20        1. Parent (or guardian) and Child. I, (insert name of
21    appointing parent or guardian), currently residing at
22    (insert address of appointing parent or guardian), am a
23    parent (or the guardian of the person) of the following
24    child (or of a child likely to be born): (insert name and
25    date of birth of child, or insert the words "not yet born"

 

 

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1    to appoint a short-term guardian for a child likely to be
2    born and the child's expected date of birth).
3        2. Guardian. I hereby appoint the following person as
4    the short-term guardian for the child: (insert name and
5    address of appointed person).
6        3. Effective date. This appointment becomes effective:
7    (check one if you wish it to be applicable)
8            ( ) On the date that I state in writing that I am
9        no longer either willing or able to make and carry out
10        day-to-day child care decisions concerning the child.
11            ( ) On the date that a physician familiar with my
12        condition certifies in writing that I am no longer
13        willing or able to make and carry out day-to-day child
14        care decisions concerning the child.
15            ( ) On the date that I am admitted as an in-patient
16        to a hospital or other health care institution.
17            ( ) On the following date: (insert date).
18            ( ) Other: (insert other).
19[NOTE: If this item is not completed, the appointment is
20effective immediately upon the date the form is signed and
21dated below.]
22        4. Termination. This appointment shall terminate 365
23    days after the effective date, unless it terminates sooner
24    as determined by the event or date I have indicated below:
25    (check one if you wish it to be applicable)
26            ( ) On the date that I state in writing that I am

 

 

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1        willing and able to make and carry out day-to-day child
2        care decisions concerning the child.
3            ( ) On the date that a physician familiar with my
4        condition certifies in writing that I am willing and
5        able to make and carry out day-to-day child care
6        decisions concerning the child.
7            ( ) On the date that I am discharged from the
8        hospital or other health care institution where I was
9        admitted as an in-patient, which established the
10        effective date.
11            ( ) On the date which is (state a number of days,
12        but no more than 365 days) days after the effective
13        date.
14            ( ) Other: (insert other).
15[NOTE: If this item is not completed, the appointment will be
16effective for a period of 365 days, beginning on the effective
17date.]
18        5. Date and signature of appointing parent or guardian.
19    This appointment is made this (insert day) day of (insert
20    month and year).
21            Signed: (appointing parent)
22        6. Witnesses. I saw the parent (or the guardian of the
23    person of the child) sign this instrument or I saw the
24    parent (or the guardian of the person of the child) direct
25    someone to sign this instrument for the parent (or the
26    guardian). Then I signed this instrument as a witness in

 

 

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1    the presence of the parent (or the guardian). I am not
2    appointed in this instrument to act as the short-term
3    guardian for the child. (Insert space for names, addresses,
4    and signatures of 2 witnesses)
5        7. Acceptance of short-term guardian. I accept this
6    appointment as short-term guardian on this (insert day) day
7    of (insert month and year).
8            Signed: (short-term guardian)
9        8. Consent of child's other parent. I, (insert name of
10    the child's other living parent), currently residing at
11    (insert address of child's other living parent), hereby
12    consent to this appointment on this (insert day) day of
13    (insert month and year).
14            Signed: (consenting parent)
15[NOTE: The signature of a consenting parent is not necessary if
16one of the following applies: (i) the child's other parent has
17died; or (ii) the whereabouts of the child's other parent are
18not known; or (iii) the child's other parent is not willing or
19able to make and carry out day-to-day child care decisions
20concerning the child; or (iv) the child's parents were never
21married and no court has issued an order establishing
22parentage.]
23(Source: P.A. 98-568, eff. 1-1-14.)
 
24    (755 ILCS 5/11-8)  (from Ch. 110 1/2, par. 11-8)
25    Sec. 11-8. Petition for guardian of minor.

 

 

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1    (a) The petition for appointment of a guardian of the
2estate, or of both the person and estate, of a minor, or for
3appointment of the guardian of the person only of a minor or
4minors must state, if known: (1) the name, date of birth and
5residence of the minor; (2) the names and post office addresses
6of the nearest relatives of the minor in the following order:
7(i) the spouse, if any; if none, (ii) the parents, and adult
8brothers and sisters, and the short-term guardian, if any; if
9none, (iii) the nearest adult kindred; (3) the name and post
10office address of the person having the custody of the minor;
11(4) the approximate value of the personal estate; (5) the
12amount of the anticipated gross annual income and other
13receipts; (6) the name, post office address and, in case of an
14individual, the age and occupation of the proposed guardian;
15(7) the facts concerning the execution or admission to probate
16of the written designation of the guardian, if any, a copy of
17which shall be attached to or filed with the petition; and (8)
18the facts concerning any juvenile, adoption, parentage,
19dissolution, or guardianship court actions pending concerning
20the minor or the parents of the minor and whether any guardian
21is currently acting for the minor. In addition, if the petition
22seeks the appointment of a previously appointed standby
23guardian as guardian of the minor, the petition must also
24state: (9) the facts concerning the standby guardian's previous
25appointment and (10) the date of death of the minor's parent or
26parents or the facts concerning the consent of the minor's

 

 

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1parent or parents to the appointment of the standby guardian as
2guardian, or the willingness and ability of the minor's parent
3or parents to make and carry out day-to-day child care
4decisions concerning the minor.
5    If a short-term guardian who has been appointed by the
6minor's parent or guardian prior to the filing of the petition
7subsequently petitions for court-ordered guardianship of the
8minor, the petition shall state the facts concerning the
9appointment of the short-term guardian, including: (i) the date
10of the appointment; (ii) the circumstances surrounding the
11appointment; (iii) the date the short-term guardian
12appointment ends; and (iv) the reasons why a court-ordered
13guardian is also needed for the minor. A copy of the short-term
14guardianship appointment shall be attached to the petition.
15    (b) A single petition for appointment of only a guardian of
16the person of a minor may include more than one minor. The
17statements required in items (1) and (2) of subsection (a)
18shall be listed separately for each minor.
19(Source: P.A. 90-796, eff. 12-15-98.)
 
20    (755 ILCS 5/11-8.1)
21    Sec. 11-8.1. Petition for standby guardian of minor. The
22petition for appointment of a standby guardian of the person or
23the estate, or both, of a minor must state, if known: (a) the
24name, date of birth, and residence of the minor; (b) the names
25and post office addresses of the nearest relatives of the minor

 

 

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1in the following order: (1) the parents, if any; if none, (2)
2the adult brothers and sisters, if any; if none, (3) the
3nearest adult kindred; (4) the short-term guardian, if any; (c)
4the name and post office address of the person having custody
5of the minor; (d) the name, post office address, and, in case
6of any individual, the age and occupation of the proposed
7standby guardian; (e) the facts concerning the consent of the
8minor's parent or parents or the guardian of the person of the
9minor to the appointment of the standby guardian, or the
10willingness and ability of the minor's parent or parents, if
11any, or the guardian of the person of the minor to make and
12carry out day-to-day child care decisions concerning the minor;
13(f) the facts concerning the execution or admission to probate
14of the written designation of the standby guardian, if any, a
15copy of which shall be attached to or filed with the petition;
16and (g) the facts concerning any juvenile, adoption, parentage,
17dissolution, or guardianship court actions pending concerning
18the minor or the parents of the minor and whether any guardian
19is currently acting for the minor. If a short-term guardian has
20been appointed by the minor's parent or guardian and
21subsequently petitions for standby guardianship of the minor,
22the petition shall state the facts concerning the appointment
23of the short-term guardian, including: (i) the date of the
24appointment; (ii) the circumstances surrounding the
25appointment; (iii) the date the short-term guardian
26appointment ends; and (iv) the reasons why a standby guardian

 

 

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1is also needed for the minor. A copy of the short-term
2guardianship appointment shall be attached to the petition.
3(Source: P.A. 90-796, eff. 12-15-98.)
 
4    (755 ILCS 5/11-10.1)  (from Ch. 110 1/2, par. 11-10.1)
5    Sec. 11-10.1. Procedure for appointment of a standby
6guardian or a guardian of a minor.
7    (a) Unless excused by the court for good cause shown, it is
8the duty of the petitioner to give notice of the time and place
9of the hearing on the petition, in person or by mail, to the
10minor, if the minor is 14 years, or older, and to the relatives
11and the short-term guardian of the minor whose names and
12addresses are stated in the petition, not less than 3 days
13before the hearing, but failure to give notice to any relative
14is not jurisdictional.
15    (b) In any proceeding for the appointment of a standby
16guardian or a guardian the court may appoint a guardian ad
17litem to represent the minor in the proceeding.
18(Source: P.A. 88-529.)
 
19    (755 ILCS 5/11-13)  (from Ch. 110 1/2, par. 11-13)
20    Sec. 11-13. Duties of guardian of a minor. Before a
21guardian of a minor may act, the guardian shall be appointed by
22the court of the proper county and, in the case of a guardian
23of the minor's estate, the guardian shall give the bond
24prescribed in Section 12-2. Except as provided in Section

 

 

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111-13.1 and Section 11-13.2 with respect to the standby or
2short-term guardian of the person of a minor, the court shall
3have control over the person and estate of the ward. Under the
4direction of the court:
5    (a) The guardian of the person shall have the custody,
6nurture and tuition and shall provide education of the ward and
7of his children, but the ward's spouse may not be deprived of
8the custody and education of the spouse's children, without
9consent of the spouse, unless the court finds that the spouse
10is not a fit and competent person to have such custody and
11education. If the ward's estate is insufficient to provide for
12the ward's education and the guardian of his person fails to
13provide education, the court may award the custody of the ward
14to some other person for the purpose of providing education. If
15a person makes a settlement upon or provision for the support
16or education of a ward and if either parent of the ward is
17dead, the court may make such order for the visitation of the
18ward by the person making the settlement or provision as the
19court deems proper. The guardian of the minor shall inform the
20court of the minor's current address by certified mail, hand
21delivery, or other method in accordance with court rules within
2230 days of any change of residence.
23    (b) The guardian or other representative of the ward's
24estate shall have the care, management and investment of the
25estate, shall manage the estate frugally and shall apply the
26income and principal of the estate so far as necessary for the

 

 

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1comfort and suitable support and education of the ward, his
2children, and persons related by blood or marriage who are
3dependent upon or entitled to support from him, or for any
4other purpose which the court deems to be for the best
5interests of the ward, and the court may approve the making on
6behalf of the ward of such agreements as the court determines
7to be for the ward's best interests. The representative may
8make disbursement of his ward's funds and estate directly to
9the ward or other distributee or in such other manner and in
10such amounts as the court directs. If the estate of a ward is
11derived in whole or in part from payments of compensation,
12adjusted compensation, pension, insurance or other similar
13benefits made directly to the estate by the Veterans
14Administration, notice of the application for leave to invest
15or expend the ward's funds or estate, together with a copy of
16the petition and proposed order, shall be given to the
17Veterans' Administration Regional Office in this State at least
187 days before the hearing on the application. The court, upon
19petition of a guardian of the estate of a minor, may permit the
20guardian to make a will or create a revocable or irrevocable
21trust for the minor that the court considers appropriate in
22light of changes in applicable tax laws that allow for
23minimization of State or federal income, estate, or inheritance
24taxes; however, the will or trust must make distributions only
25to the persons who would be entitled to distributions if the
26minor were to die intestate and the will or trust must make

 

 

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1distributions to those persons in the same amounts to which
2they would be entitled if the minor were to die intestate.
3    (c) Upon the direction of the court which issued his
4letters a representative may perform the contracts of his ward
5which were legally subsisting at the time of the commencement
6of the guardianship. The court may authorize the guardian to
7execute and deliver any bill of sale, deed or other instrument.
8    (d) The representative of the estate of a ward shall appear
9for and represent the ward in all legal proceedings unless
10another person is appointed for that purpose as representative
11or next friend. This does not impair the power of any court to
12appoint a representative or next friend to defend the interests
13of the ward in that court, or to appoint or allow any person as
14the next friend of a ward to commence, prosecute or defend any
15proceeding in his behalf. Any proceeding on behalf of a minor
16may be commenced and prosecuted by his next friend, without any
17previous authority or appointment by the court if the next
18friend enters bond for costs and files it in the court where
19the proceeding is pending. Without impairing the power of the
20court in any respect, if the representative of the estate of a
21minor and another person as next friend shall appear for and
22represent the minor in a legal proceeding in which the
23compensation of the attorney or attorneys representing the
24guardian and next friend is solely determined under a
25contingent fee arrangement, the guardian of the estate of the
26minor shall not participate in or have any duty to review the

 

 

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1prosecution of the action, to participate in or review the
2appropriateness of any settlement of the action, or to
3participate in or review any determination of the
4appropriateness of any fees awarded to the attorney or
5attorneys employed in the prosecution of the action.
6    (e) Upon petition by any interested person (including the
7standby or short-term guardian), with such notice to interested
8persons as the court directs and a finding by the court that it
9is in the best interest of the minor, the court may terminate
10or limit the authority of a standby or short-term guardian or
11may enter such other orders as the court deems necessary to
12provide for the best interest of the minor. The petition for
13termination or limitation of the authority of a standby or
14short-term guardian may, but need not, be combined with a
15petition to have a guardian appointed for the minor.
16    (f) The court may grant leave to the guardian of a minor
17child or children to remove such child or children from
18Illinois whenever such approval is in the best interests of
19such child or children. The guardian may not remove a minor
20from Illinois except as permitted under this Section and must
21seek leave of the court prior to removing a child for 30 days
22or more. The burden of proving that such removal is in the best
23interests of such child or children is on the guardian. When
24such removal is permitted, the court may require the guardian
25removing such child or children from Illinois to give
26reasonable security guaranteeing the return of such children.

 

 

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1    The court shall consider the wishes of the minor's parent
2or parents and the effect of removal on visitation and the
3wishes of the minor if he or she is 14 years of age or older.
4The court may not consider the availability of electronic
5communication as a factor in support of the removal of a child
6by the guardian from Illinois. The guardianship order may
7incorporate language governing removal of the minor from the
8State.
9    Before a minor child is temporarily removed from Illinois
10for more than 48 hours but less than 30 days, the guardian
11shall inform the parent or parents of the address and telephone
12number where the child may be reached during the period of
13temporary removal and the date on which the child shall return
14to Illinois. The State of Illinois retains jurisdiction when
15the minor child is absent from the State pursuant to this
16subsection. The guardianship order may incorporate language
17governing out-of-state travel with the minor.
18(Source: P.A. 90-345, eff. 8-8-97; 91-149, eff. 1-1-00.)