[ Search ] [ Legislation ] [ Bill Summary ]
[ Home ] [ Back ] [ Bottom ]
| [ Engrossed ] | [ Enrolled ] |
90_HB1779
755 ILCS 5/11-13 from Ch. 110 1/2, par. 11-13
755 ILCS 5/11a-18 from Ch. 110 1/2, par. 11a-18
Amends the Probate Act in the Article regarding minors
and the Article regarding guardians for disabled adults.
Provides that, without impairing the power of the court, if
the guardian of the estate of a ward or minor and another
person as next friend represent the ward or guardian in a
legal action in which the attorney representing the guardian
and next friend is paid on a contingent fee basis, the
guardian of the estate shall not participate in or have any
duty to review the prosecution of the action, its settlement,
or the award of attorney's fees. Effective immediately.
LRB9004022SMdv
LRB9004022SMdv
1 AN ACT to amend the Probate Act of 1975 by changing
2 Sections 11-13 and 11a-18.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The Probate Act of 1975 is amended by
6 changing Sections 11-13 and 11a-18 as follows:
7 (755 ILCS 5/11-13) (from Ch. 110 1/2, par. 11-13)
8 Sec. 11-13. Duties of guardian of a minor. Before a
9 guardian of a minor may act, the guardian shall be appointed
10 by the court of the proper county and, in the case of a
11 guardian of the minor's estate, the guardian shall give the
12 bond prescribed in Section 12-2. Except as provided in
13 Section 11-13.1 and Section 11-13.2 with respect to the
14 standby or short-term guardian of the person of a minor, the
15 court shall have control over the person and estate of the
16 ward. Under the direction of the court:
17 (a) The guardian of the person shall have the custody,
18 nurture and tuition and shall provide education of the ward
19 and of his children, but the ward's spouse may not be
20 deprived of the custody and education of the spouse's
21 children, without consent of the spouse, unless the court
22 finds that the spouse is not a fit and competent person to
23 have such custody and education. If the ward's estate is
24 insufficient to provide for the ward's education and the
25 guardian of his person fails to provide education, the court
26 may award the custody of the ward to some other person for
27 the purpose of providing education. If a person makes a
28 settlement upon or provision for the support or education of
29 a ward and if either parent of the ward is dead, the court
30 may make such order for the visitation of the ward by the
31 person making the settlement or provision as the court deems
-2- LRB9004022SMdv
1 proper.
2 (b) The guardian or other representative of the ward's
3 estate shall have the care, management and investment of the
4 estate, shall manage the estate frugally and shall apply the
5 income and principal of the estate so far as necessary for
6 the comfort and suitable support and education of the ward,
7 his children, and persons related by blood or marriage who
8 are dependent upon or entitled to support from him, or for
9 any other purpose which the court deems to be for the best
10 interests of the ward, and the court may approve the making
11 on behalf of the ward of such agreements as the court
12 determines to be for the ward's best interests. The
13 representative may make disbursement of his ward's funds and
14 estate directly to the ward or other distributee or in such
15 other manner and in such amounts as the court directs. If
16 the estate of a ward is derived in whole or in part from
17 payments of compensation, adjusted compensation, pension,
18 insurance or other similar benefits made directly to the
19 estate by the Veterans Administration, notice of the
20 application for leave to invest or expend the ward's funds or
21 estate, together with a copy of the petition and proposed
22 order, shall be given to the Veterans' Administration
23 Regional Office in this State at least 7 days before the
24 hearing on the application.
25 (c) Upon the direction of the court which issued his
26 letters a representative may perform the contracts of his
27 ward which were legally subsisting at the time of the
28 commencement of the guardianship. The court may authorize
29 the guardian to execute and deliver any bill of sale, deed or
30 other instrument.
31 (d) The representative of the estate of a ward shall
32 appear for and represent the ward in all legal proceedings
33 unless another person is appointed for that purpose as
34 representative or next friend. This does not impair the
-3- LRB9004022SMdv
1 power of any court to appoint a representative or next friend
2 to defend the interests of the ward in that court, or to
3 appoint or allow any person as the next friend of a ward to
4 commence, prosecute or defend any proceeding in his behalf.
5 Any proceeding on behalf of a minor may be commenced and
6 prosecuted by his next friend, without any previous authority
7 or appointment by the court if the next friend enters bond
8 for costs and files it in the court where the proceeding is
9 pending. Without impairing the power of the court in any
10 respect, if the representative of the estate of a minor and
11 another person as next friend shall appear for and represent
12 the minor in a legal proceeding in which the compensation of
13 the attorney or attorneys representing the guardian and next
14 friend is solely determined under a contingent fee
15 arrangement, the guardian of the estate of the minor shall
16 not participate in or have any duty to review the prosecution
17 of the action, to participate in or review the
18 appropriateness of any settlement of the action, or to
19 participate in or review any determination of the
20 appropriateness of any fees awarded to the attorney or
21 attorneys employed in the prosecution of the action.
22 (e) Upon petition by any interested person (including
23 the standby or short-term guardian), with such notice to
24 interested persons as the court directs and a finding by the
25 court that it is in the best interest of the minor, the court
26 may terminate or limit the authority of a standby or
27 short-term guardian or may enter such other orders as the
28 court deems necessary to provide for the best interest of the
29 minor. The petition for termination or limitation of the
30 authority of a standby or short-term guardian may, but need
31 not, be combined with a petition to have a guardian appointed
32 for the minor.
33 (Source: P.A. 88-529.)
-4- LRB9004022SMdv
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
4 the guardianship, the guardian of the estate shall have the
5 care, management and investment of the estate, shall manage
6 the estate frugally and shall apply the income and principal
7 of the estate so far as necessary for the comfort and
8 suitable support and education of the ward, his minor and
9 adult dependent children, and persons related by blood or
10 marriage who are dependent upon or entitled to support from
11 him, or for any other purpose which the court deems to be for
12 the best interests of the ward, and the court may approve the
13 making on behalf of the ward of such agreements as the court
14 determines to be for the ward's best interests. The guardian
15 may make disbursement of his ward's funds and estate directly
16 to the ward or other distributee or in such other manner and
17 in such amounts as the court directs. If the estate of a
18 ward is derived in whole or in part from payments of
19 compensation, adjusted compensation, pension, insurance or
20 other similar benefits made directly to the estate by the
21 Veterans Administration, notice of the application for leave
22 to invest or expend the ward's funds or estate, together with
23 a copy of the petition and proposed order, shall be given to
24 the 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,
27 other than the guardian of a minor, and after notice to all
28 other persons interested as the court directs, may authorize
29 the guardian to exercise any or all powers over the estate
30 and business affairs of the ward that the ward could exercise
31 if present and not under disability. The court may authorize
32 the taking of an action or the application of funds not
33 required for the ward's current and future maintenance and
34 support in any manner approved by the court as being in
-5- LRB9004022SMdv
1 keeping with the ward's wishes so far as they can be
2 ascertained. The court must consider the permanence of the
3 ward's disabling condition and the natural objects of the
4 ward's bounty. In ascertaining and carrying out the ward's
5 wishes the court may consider, but shall not be limited to,
6 minimization of State or federal income, estate, or
7 inheritance taxes; and providing gifts to charities,
8 relatives, and friends that would be likely recipients of
9 donations from the ward. The ward's wishes as best they can
10 be ascertained shall be carried out, whether or not tax
11 savings are involved. Actions or applications of funds may
12 include, but shall not be limited to, the following:
13 (1) making gifts of income or principal, or both,
14 of the estate, either outright or in trust;
15 (2) conveying, releasing, or disclaiming his or her
16 contingent and expectant interests in property, including
17 marital property rights and any right of survivorship
18 incident to joint tenancy or tenancy by the entirety;
19 (3) releasing or disclaiming his or her powers as
20 trustee, personal representative, custodian for minors,
21 or guardian;
22 (4) exercising, releasing, or disclaiming his or
23 her powers as donee of a power of appointment;
24 (5) entering into contracts;
25 (6) creating for the benefit of the ward or others,
26 revocable or irrevocable trusts of his or her property
27 that may extend beyond his or her disability or life.
28 (7) exercising options of the ward to purchase or
29 exchange securities or other property;
30 (8) exercising the rights of the ward to elect
31 benefit or payment options, to terminate, to change
32 beneficiaries or ownership, to assign rights, to borrow,
33 or to receive cash value in return for a surrender of
34 rights under any one or more of the following:
-6- LRB9004022SMdv
1 (i) Life insurance policies, plans, or
2 benefits.
3 (ii) Annuity policies, plans, or benefits.
4 (iii) Mutual fund and other dividend
5 investment plans.
6 (iv) Retirement, profit sharing, and employee
7 welfare plans and benefits;
8 (9) exercising his or her right to claim or
9 disclaim an elective share in the estate of his or her
10 deceased spouse and to renounce any interest by testate
11 or intestate succession or by inter vivos transfer;
12 (10) changing the ward's residence or domicile; or
13 (11) modifying by means of codicil or trust
14 amendment the terms of the ward's will or any revocable
15 trust created by the ward, as the court may consider
16 advisable in light of changes in applicable tax laws. The
17 guardian in his or her petition shall briefly outline the
18 action or application of funds for which he or she seeks
19 approval, the results expected to be accomplished
20 thereby, and the tax savings, if any, expected to accrue.
21 The proposed action or application of funds may include
22 gifts of the ward's personal property or real estate, but
23 transfers of real estate shall be subject to the
24 requirements of Section 20 of this Act. Gifts may be for
25 the benefit of prospective legatees, devisees, or heirs
26 apparent of the ward or may be made to individuals or
27 charities in which the ward is believed to have an
28 interest. The guardian shall also indicate in the
29 petition that any planned disposition is consistent with
30 the intentions of the ward insofar as they can be
31 ascertained, and if the ward's intentions cannot be
32 ascertained, the ward will be presumed to favor reduction
33 in the incidents of various forms of taxation and the
34 partial distribution of his or her estate as provided in
-7- LRB9004022SMdv
1 this subsection. The guardian shall not, however, be
2 required to include as a beneficiary or fiduciary any
3 person who he has reason to believe would be excluded by
4 the ward. A guardian shall be required to investigate
5 and pursue a ward's eligibility for governmental
6 benefits.
7 (b) Upon the direction of the court which issued his
8 letters, a guardian may perform the contracts of his ward
9 which were legally subsisting at the time of the commencement
10 of the ward's disability. The court may authorize the
11 guardian to execute and deliver any bill of sale, deed or
12 other instrument.
13 (c) The guardian of the estate of a ward shall appear
14 for and represent the ward in all legal proceedings unless
15 another person is appointed for that purpose as guardian or
16 next friend. This does not impair the power of any court to
17 appoint a guardian ad litem or next friend to defend the
18 interests of the ward in that court, or to appoint or allow
19 any person as the next friend of a ward to commence,
20 prosecute or defend any proceeding in his behalf. Without
21 impairing the power of the court in any respect, if the
22 guardian of the estate of a ward and another person as next
23 friend shall appear for and represent the ward in a legal
24 proceeding in which the compensation of the attorney or
25 attorneys representing the guardian and next friend is solely
26 determined under a contingent fee arrangement, the guardian
27 of the estate of the ward shall not participate in or have
28 any duty to review the prosecution of the action, to
29 participate in or review the appropriateness of any
30 settlement of the action, or to participate in or review any
31 determination of the appropriateness of any fees awarded to
32 the attorney or attorneys employed in the prosecution of the
33 action.
34 (d) Adjudication of disability shall not revoke or
-8- LRB9004022SMdv
1 otherwise terminate a trust which is revocable by the ward.
2 A guardian of the estate shall have no authority to revoke a
3 trust that is revocable by the ward, except that the court
4 may authorize a guardian to revoke a Totten trust or similar
5 deposit or withdrawable capital account in trust to the
6 extent necessary to provide funds for the purposes specified
7 in paragraph (a) of this Section. If the trustee of any
8 trust for the benefit of the ward has discretionary power to
9 apply income or principal for the ward's benefit, the trustee
10 shall not be required to distribute any of the income or
11 principal to the guardian of the ward's estate, but the
12 guardian may bring an action on behalf of the ward to compel
13 the trustee to exercise the trustee's discretion or to seek
14 relief from an abuse of discretion. This paragraph shall not
15 limit the right of a guardian of the estate to receive
16 accountings from the trustee on behalf of the ward.
17 (e) Absent court order pursuant to the "Illinois Power
18 of Attorney Act" enacted by the 85th General Assembly
19 directing a guardian to exercise powers of the principal
20 under an agency that survives disability, the guardian will
21 have no power, duty or liability with respect to any property
22 subject to the agency. This subsection (e) applies to all
23 agencies, whenever and wherever executed.
24 (Source: P.A. 89-672, eff. 8-14-96.)
25 Section 99. Effective date. This Act takes effect upon
26 becoming law.