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90_HB2367
755 ILCS 5/1-2.23
755 ILCS 5/1-2.24
755 ILCS 5/11a-3.1 new
755 ILCS 5/11a-3.2 new
755 ILCS 5/11a-8 from Ch. 110 1/2, par. 11a-8
755 ILCS 5/11a-8.1 new
755 ILCS 5/11a-10.2 new
755 ILCS 5/11a-17 from Ch. 110 1/2, par. 11a-17
755 ILCS 5/11a-18 from Ch. 110 1/2, par. 11a-18
755 ILCS 5/11a-18.2 new
755 ILCS 5/11a-18.3 new
755 ILCS 5/11a-23
755 ILCS 5/12-2 from Ch. 110 1/2, par. 12-2
Amends the Probate Act of 1975. Provides for the
designation by the current guardian of a disabled adult of a
standby guardian to act on an interim basis as guardian upon
the death of the current guardian and in other circumstances,
for a period of 60 days, allowing time for a petition to be
filed and another guardian to be appointed. Provides for the
establishment of a short-term guardian of the person of a
disabled adult, to be designated by the current guardian, to
act as guardian for up to 60 days for health or other
reasons. Establishes procedures and conditions for the
appointment of these guardians.
LRB9006820SMpkA
LRB9006820SMpkA
1 AN ACT to amend the Probate Act of 1975 by changing
2 Sections 1-2.23, 1-2.24, 11a-8, 11a-17, 11a-18, 11a-23, and
3 12-2, and by adding Sections 11a-3.1, 11a-3.2, 11a-8.1,
4 11a-10.2, 11a-18.2, and 11a-18.3.
5 Be it enacted by the People of the State of Illinois,
6 represented in the General Assembly:
7 Section 5. The Probate Act of 1975 is amended by
8 changing Sections 1-2.23, 1-2.24, 11a-8, 11a-17, 11a-18,
9 11a-23, and 12-2, and by adding Sections 11a-3.1, 11a-3.2,
10 11a-8.1, 11a-10.2, 11a-18.2, and 11a-18.3a as follows:
11 (755 ILCS 5/1-2.23)
12 Sec. 1-2.23. "Standby guardian" means: (i) a guardian of
13 the person or estate, or both, of a minor, as appointed by
14 the court under Section 11-5.3, to become effective at a
15 later date under Section 11-13.1 or (ii) a guardian of the
16 person or estate, or both, of a disabled person, as appointed
17 by the court under Section 11a-3.1, to become effective at a
18 later date under Section 11a-18.2.
19 (Source: P.A. 88-202; 88-529.)
20 (755 ILCS 5/1-2.24)
21 Sec. 1-2.24. "Short-term guardian" means a guardian of
22 the person of a minor as appointed by a parent of the minor
23 under Section 11-5.4 or a guardian of the person of a
24 disabled person as appointed by the guardian of the disabled
25 person under Section 11a-3.2.
26 (Source: P.A. 88-529.)
27 (755 ILCS 5/11a-3.1 new)
28 Sec. 11a-3.1. Appointment of standby guardian.
29 (a) The guardian of a disabled person may designate in
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1 any writing, including a will, a person qualified to act
2 under Section 11a-5 to be appointed as standby guardian of
3 the person or estate, or both, of the disabled person. The
4 guardian may designate in any writing, including a will, a
5 person qualified to act under Section 11a-5 to be appointed
6 as successor standby guardian of the disabled person's person
7 or estate, or both. The designation must be witnessed by 2 or
8 more credible witnesses at least 18 years of age, neither of
9 whom is the person designated as the standby guardian. The
10 designation may be proved by any competent evidence. If the
11 designation is executed and attested in the same manner as a
12 will, it shall have prima facie validity.
13 (b) Upon the filing of a petition for the appointment of
14 a standby guardian, the court may appoint a standby guardian
15 of the person or estate, or both, of the disabled person as
16 the court finds to be in the best interest of the disabled
17 person.
18 (c) The standby guardian shall take and file an oath or
19 affirmation that the standby guardian will faithfully
20 discharge the duties of the office of standby guardian
21 according to law, and shall file in and have approved by the
22 court a bond binding the standby guardian so to do, but shall
23 not be required to file a bond until the standby guardian
24 assumes all duties as guardian of the disabled person under
25 Section 11a-18.2.
26 (d) The designation of a standby guardian may, but need
27 not, be in the following form:
28 DESIGNATION OF STANDBY GUARDIAN
29 [IT IS IMPORTANT TO READ THE FOLLOWING INSTRUCTIONS:
30 A standby guardian is someone who has been appointed
31 by the court as the person who will act as guardian of
32 the disabled person when the disabled person's guardian
33 dies or is no longer willing or able to make and carry
34 out day-to-day care decisions concerning the disabled
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1 person. By properly completing this form, a guardian is
2 naming the person that the guardian wants to be appointed
3 as the standby guardian of the disabled person. Signing
4 the form does not appoint the standby guardian; to be
5 appointed, a petition must be filed in and approved by
6 the court.]
7 1. Guardian and Ward. I, (insert name of
8 designating guardian), currently residing at (insert
9 address of designating guardian), am the guardian of the
10 following disabled person: (insert name of ward).
11 2. Standby Guardian. I hereby designate the
12 following person to be appointed as standby guardian for
13 my ward listed above: (insert name and address of person
14 designated).
15 3. Successor Standby Guardian. If the person named
16 in item 2 above cannot or will not act as standby
17 guardian, I designate the following person to be
18 appointed as successor standby guardian for my ward:
19 (insert name and address of person designated).
20 4. Date and Signature. This designation is made
21 this (insert day) day of (insert month and year).
22 Signed: (designating guardian)
23 5. Witnesses. I saw the guardian sign this
24 designation or the guardian told me that the guardian
25 signed this designation. Then I signed the designation as
26 a witness in the presence of the guardian. I am not
27 designated in this instrument to act as a standby
28 guardian for the guardian's ward. (insert space for
29 names, addresses, and signatures of 2 witnesses).
30 (755 ILCS 5/11a-3.2 new)
31 Sec. 11a-3.2. Short-term guardian.
32 (a) The guardian of a disabled person may appoint in
33 writing, without court approval, a short-term guardian of the
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1 disabled person. The written instrument appointing a
2 short-term guardian shall be dated and shall identify the
3 appointing guardian, the disabled person, and the person
4 appointed to be the short-term guardian. The written
5 instrument shall be signed by, or at the direction of, the
6 appointing guardian in the presence of at least 2 credible
7 witnesses at least 18 years of age, neither of whom is the
8 person appointed as the short-term guardian. The person
9 appointed as the short-term guardian shall also sign the
10 written instrument, but need not sign at the same time as the
11 appointing 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
16 or event. The short-term guardian shall have authority to
17 act as guardian of the disabled person as provided in Section
18 11a-18.3 for a period of 60 days from the date the
19 appointment is effective, unless the written instrument
20 provides for the appointment to terminate upon an earlier
21 specified date or event. Only one written instrument
22 appointing a short-term guardian may be in force at any given
23 time.
24 (c) Every appointment of a short-term guardian may be
25 amended or revoked by the appointing guardian at any time and
26 in any manner communicated to the short-term guardian or to
27 any other person. Any person other than the short-term
28 guardian to whom a revocation or amendment is communicated or
29 delivered shall make all reasonable efforts to inform the
30 short-term guardian of that fact as promptly as possible.
31 (d) The appointment of a short-term guardian or
32 successor short-term guardian does not affect the rights in
33 the disabled person of any guardian other than the appointing
34 guardian.
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1 (e) The written instrument appointing a short-term
2 guardian may, but need not, be in the following form:
3 APPOINTMENT OF SHORT-TERM GUARDIAN
4 [IT IS IMPORTANT TO READ THE FOLLOWING INSTRUCTIONS:
5 By properly completing this form, a guardian is
6 appointing a short-term guardian of the disabled person
7 for a period of up to 60 days. A separate form should be
8 completed for each ward. The person appointed as the
9 short-term guardian must sign the form, but need not do
10 so at the same time as the guardian.]
11 1. Guardian and Ward. I, (insert name of
12 appointing guardian), currently residing at (insert
13 address of appointing guardian), am the guardian of the
14 following disabled person: (insert name of ward).
15 2. Short-term Guardian. I hereby appoint the
16 following person as the short-term guardian for my ward:
17 (insert name and address of appointed person).
18 3. Effective date. This appointment becomes
19 effective: (check one if you wish it to be applicable)
20 ( ) On the date that I state in writing that I am
21 no longer either willing or able to make and carry out
22 day-to-day care decisions concerning my ward.
23 ( ) On the date that a physician familiar with my
24 condition certifies in writing that I am no longer
25 willing or able to make and carry out day-to-day care
26 decisions concerning my ward.
27 ( ) On the date that I am admitted as an in-patient
28 to a hospital or other health care institution.
29 ( ) On the following date: (insert date).
30 ( ) Other: (insert other).
31 [NOTE: If this item is not completed, the
32 appointment is effective immediately upon the date the
33 form is signed and dated below.]
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1 4. Termination. This appointment shall terminate
2 60 days after the effective date, unless it terminates
3 sooner as determined by the event or date I have
4 indicated below: (check one if you wish it to be
5 applicable)
6 ( ) On the date that I state in writing that I am
7 willing and able to make and carry out day-to-day care
8 decisions concerning my ward.
9 ( ) On the date that a physician familiar with my
10 condition certifies in writing that I am willing and
11 able to make and carry out day-to-day care decisions
12 concerning my ward.
13 ( ) On the date that I am discharged from the
14 hospital or other health care institution where I was
15 admitted as an in-patient, which established the
16 effective date.
17 ( ) On the date which is (state a number of days,
18 but no more than 60 days) days after the effective date.
19 ( ) Other: (insert other).
20 [NOTE: If this item is not completed, the
21 appointment will be effective for a period of 60 days,
22 beginning on the effective date.]
23 5. Date and signature of appointing guardian. This
24 appointment is made this (insert day) day of (insert
25 month and year).
26 Signed: (appointing guardian)
27 6. Witnesses. I saw the guardian sign this
28 instrument or I saw the guardian direct someone to sign
29 this instrument for the guardian. Then I signed this
30 instrument as a witness in the presence of the guardian.
31 I am not appointed in this instrument to act as the
32 short-term guardian for the guardian's ward. (Insert
33 space for names, addresses, and signatures of 2
34 witnesses)
-7- LRB9006820SMpkA
1 7. Acceptance of short-term guardian. I accept
2 this appointment as short-term guardian on this (insert
3 day) day of (insert month and year).
4 Signed: (short-term guardian)
5 (755 ILCS 5/11a-8) (from Ch. 110 1/2, par. 11a-8)
6 Sec. 11a-8. Petition.) The petition for adjudication of
7 disability and for the appointment of a guardian of the
8 estate or the person or both of an alleged disabled person
9 must state, if known or reasonably ascertainable: (a) the
10 relationship and interest of the petitioner to the
11 respondent; (b) the name, date of birth, and place of
12 residence of the respondent; (c) the reasons for the
13 guardianship; (d) the name and post office address of the
14 respondent's guardian, if any, or of the respondent's agent
15 or agents appointed under the Illinois Power of Attorney Act,
16 if any; (e) the name and post office addresses of the nearest
17 relatives of the respondent in the following order: (1) the
18 spouse and adult children, parents and adult brothers and
19 sisters, if any; if none, (2) nearest adult kindred known to
20 the petitioner; (f) the name and address of the person with
21 whom or the facility in which the respondent is residing; (g)
22 the approximate value of the personal and real estate; (h)
23 the amount of the anticipated annual gross income and other
24 receipts; (i) the name, post office address and in case of an
25 individual, the age, relationship to the respondent and
26 occupation of the proposed guardian. In addition, if the
27 petition seeks the appointment of a previously appointed
28 standby guardian as guardian of the disabled person, the
29 petition must also state: (j) the facts concerning the
30 standby guardian's previous appointment and (k) the date of
31 death of the disabled person's guardian or the facts
32 concerning the consent of the disabled person's guardian to
33 the appointment of the standby guardian as guardian, or the
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1 willingness and ability of the disabled person's guardian to
2 make and carry out day-to-day care decisions concerning the
3 disabled person. A petition for adjudication of disability
4 and the appointment of a guardian of the estate or the person
5 or both of an alleged disabled person may not be dismissed or
6 withdrawn without leave of the court.
7 (Source: P.A. 89-396, eff. 8-20-95.)
8 (755 ILCS 5/11a-8.1 new)
9 Sec. 11a-8.1. Petition for standby guardian of disabled
10 person. The petition for appointment of a standby guardian
11 of the person or the estate, or both, of a disabled person
12 must state, if known: (a) the name, date of birth, and
13 residence of the disabled person; (b) the names and post
14 office addresses of the nearest relatives of the disabled
15 person in the following order: (1) the parents, if any; if
16 none, (2) the adult brothers and sisters, if any; if none,
17 (3) the nearest adult kindred; (c) the name and post office
18 address of the person having guardianship of the disabled
19 person; (d) the name, post office address, and, in case of
20 any individual, the age and occupation of the proposed
21 standby guardian; (e) the facts concerning the consent of the
22 disabled person's guardian to the appointment of the standby
23 guardian, or the willingness and ability of the disabled
24 person's guardian to make and carry out day-to-day care
25 decisions concerning the disabled person; (f) the facts
26 concerning the execution or admission to probate of the
27 written designation of the standby guardian, if any, a copy
28 of which shall be attached to or filed with the petition; and
29 (g) the facts concerning any guardianship court actions
30 pending concerning the disabled person.
31 (755 ILCS 5/11a-10.2 new)
32 Sec. 11a-10.2. Procedure for appointment of a standby
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1 guardian or a guardian of a disabled person. In any
2 proceeding for the appointment of a standby guardian or a
3 guardian the court may appoint a guardian ad litem to
4 represent the disabled person in the proceeding.
5 (755 ILCS 5/11a-17) (from Ch. 110 1/2, par. 11a-17)
6 Sec. 11a-17. Duties of personal guardian.
7 (a) To the extent ordered by the court and under the
8 direction of the court, the guardian of the person shall have
9 custody of the ward and the ward's minor and adult dependent
10 children; shall procure for them and shall make provision for
11 their support, care, comfort, health, education and
12 maintenance, and professional services as are appropriate,
13 but the ward's spouse may not be deprived of the custody and
14 education of the ward's minor and adult dependent children,
15 without the consent of the spouse, unless the court finds
16 that the spouse is not a fit and competent person to have
17 that custody and education. The guardian shall assist the
18 ward in the development of maximum self-reliance and
19 independence. The guardian of the person may petition the
20 court for an order directing the guardian of the estate to
21 pay an amount periodically for the provision of the services
22 specified by the court order. If the ward's estate is
23 insufficient to provide for education and the guardian of the
24 ward's person fails to provide education, the court may award
25 the custody of the ward to some other person for the purpose
26 of providing education. If a person makes a settlement upon
27 or provision for the support or education of a ward, the
28 court may make an order for the visitation of the ward by the
29 person making the settlement or provision as the court deems
30 proper.
31 (b) If the court directs, the guardian of the person
32 shall file with the court at intervals indicated by the
33 court, a report that shall state briefly: (1) the current
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1 mental, physical, and social condition of the ward and the
2 ward's minor and adult dependent children; (2) their present
3 living arrangement, and a description and the address of
4 every residence where they lived during the reporting period
5 and the length of stay at each place; (3) a summary of the
6 medical, educational, vocational, and other professional
7 services given to them; (4) a resume of the guardian's visits
8 with and activities on behalf of the ward and the ward's
9 minor and adult dependent children; (5) a recommendation as
10 to the need for continued guardianship; (6) any other
11 information requested by the court or useful in the opinion
12 of the guardian. The Office of the State Guardian shall
13 assist the guardian in filing the report when requested by
14 the guardian. The court may take such action as it deems
15 appropriate pursuant to the report.
16 (c) Absent court order pursuant to the Illinois Power of
17 Attorney Act directing a guardian to exercise powers of the
18 principal under an agency that survives disability, the
19 guardian has no power, duty, or liability with respect to any
20 personal or health care matters covered by the agency. This
21 subsection (c) applies to all agencies, whenever and wherever
22 executed.
23 (d) A guardian acting as a surrogate decision maker
24 under the Health Care Surrogate Act shall have all the rights
25 of a surrogate under that Act without court order including
26 the right to make medical treatment decisions such as
27 decisions to forgo or withdraw life-sustaining treatment. Any
28 decisions by the guardian to forgo or withdraw
29 life-sustaining treatment that are not authorized under the
30 Health Care Surrogate Act shall require a court order.
31 Nothing in this Section shall prevent an agent acting under a
32 power of attorney for health care from exercising his or her
33 authority under the Illinois Power of Attorney Act without
34 further court order, unless a court has acted under Section
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1 2-10 of the Illinois Power of Attorney Act. If a guardian is
2 also a health care agent for the ward under a valid power of
3 attorney for health care, the guardian acting as agent may
4 execute his or her authority under that act without further
5 court order.
6 (e) Decisions made by a guardian on behalf of a ward
7 shall be made in accordance with the following standards for
8 decision making. Decisions made by a guardian on behalf of a
9 ward may be made by conforming as closely as possible to what
10 the ward, if competent, would have done or intended under the
11 circumstances, taking into account evidence that includes,
12 but is not limited to, the ward's personal, philosophical,
13 religious and moral beliefs, and ethical values relative to
14 the decision to be made by the guardian. Where possible, the
15 guardian shall determine how the ward would have made a
16 decision based on the ward's previously expressed
17 preferences, and make decisions in accordance with the
18 preferences of the ward. If the ward's wishes are unknown and
19 remain unknown after reasonable efforts to discern them, the
20 decision shall be made on the basis of the ward's best
21 interests as determined by the guardian. In determining the
22 ward's best interests, the guardian shall weigh the reason
23 for and nature of the proposed action, the benefit or
24 necessity of the action, the possible risks and other
25 consequences of the proposed action, and any available
26 alternatives and their risks, consequences and benefits, and
27 shall take into account any other information, including the
28 views of family and friends, that the guardian believes the
29 ward would have considered if able to act for herself or
30 himself.
31 (f) Upon petition by any interested person (including
32 the standby or short-term guardian), with such notice to
33 interested persons as the court directs and a finding by the
34 court that it is in the best interest of the disabled person,
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1 the court may terminate or limit the authority of a standby
2 or short-term guardian or may enter such other orders as the
3 court deems necessary to provide for the best interest of the
4 disabled person. The petition for termination or limitation
5 of the authority of a standby or short-term guardian may, but
6 need not, be combined with a petition to have another
7 guardian appointed for the disabled person.
8 (Source: P.A. 90-250, eff. 7-29-97.)
9 (755 ILCS 5/11a-18) (from Ch. 110 1/2, par. 11a-18)
10 Sec. 11a-18. Duties of the estate guardian.
11 (a) To the extent specified in the order establishing
12 the guardianship, the guardian of the estate shall have the
13 care, management and investment of the estate, shall manage
14 the estate frugally and shall apply the income and principal
15 of the estate so far as necessary for the comfort and
16 suitable support and education of the ward, his minor and
17 adult dependent children, and persons related by blood or
18 marriage who are dependent upon or entitled to support from
19 him, or for any other purpose which the court deems to be for
20 the best interests of the ward, and the court may approve the
21 making on behalf of the ward of such agreements as the court
22 determines to be for the ward's best interests. The guardian
23 may make disbursement of his ward's funds and estate directly
24 to the ward or other distributee or in such other manner and
25 in such amounts as the court directs. If the estate of a
26 ward is derived in whole or in part from payments of
27 compensation, adjusted compensation, pension, insurance or
28 other similar benefits made directly to the estate by the
29 Veterans Administration, notice of the application for leave
30 to invest or expend the ward's funds or estate, together with
31 a copy of the petition and proposed order, shall be given to
32 the Veterans' Administration Regional Office in this State at
33 least 7 days before the hearing on the application.
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1 (a-5) The probate court, upon petition of a guardian,
2 other than the guardian of a minor, and after notice to all
3 other persons interested as the court directs, may authorize
4 the guardian to exercise any or all powers over the estate
5 and business affairs of the ward that the ward could exercise
6 if present and not under disability. The court may authorize
7 the taking of an action or the application of funds not
8 required for the ward's current and future maintenance and
9 support in any manner approved by the court as being in
10 keeping with the ward's wishes so far as they can be
11 ascertained. The court must consider the permanence of the
12 ward's disabling condition and the natural objects of the
13 ward's bounty. In ascertaining and carrying out the ward's
14 wishes the court may consider, but shall not be limited to,
15 minimization of State or federal income, estate, or
16 inheritance taxes; and providing gifts to charities,
17 relatives, and friends that would be likely recipients of
18 donations from the ward. The ward's wishes as best they can
19 be ascertained shall be carried out, whether or not tax
20 savings are involved. Actions or applications of funds may
21 include, but shall not be limited to, the following:
22 (1) making gifts of income or principal, or both,
23 of the estate, either outright or in trust;
24 (2) conveying, releasing, or disclaiming his or her
25 contingent and expectant interests in property, including
26 marital property rights and any right of survivorship
27 incident to joint tenancy or tenancy by the entirety;
28 (3) releasing or disclaiming his or her powers as
29 trustee, personal representative, custodian for minors,
30 or guardian;
31 (4) exercising, releasing, or disclaiming his or
32 her powers as donee of a power of appointment;
33 (5) entering into contracts;
34 (6) creating for the benefit of the ward or others,
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1 revocable or irrevocable trusts of his or her property
2 that may extend beyond his or her disability or life.
3 (7) exercising options of the ward to purchase or
4 exchange securities or other property;
5 (8) exercising the rights of the ward to elect
6 benefit or payment options, to terminate, to change
7 beneficiaries or ownership, to assign rights, to borrow,
8 or to receive cash value in return for a surrender of
9 rights under any one or more of the following:
10 (i) Life insurance policies, plans, or
11 benefits.
12 (ii) Annuity policies, plans, or benefits.
13 (iii) Mutual fund and other dividend
14 investment plans.
15 (iv) Retirement, profit sharing, and employee
16 welfare plans and benefits;
17 (9) exercising his or her right to claim or
18 disclaim an elective share in the estate of his or her
19 deceased spouse and to renounce any interest by testate
20 or intestate succession or by inter vivos transfer;
21 (10) changing the ward's residence or domicile; or
22 (11) modifying by means of codicil or trust
23 amendment the terms of the ward's will or any revocable
24 trust created by the ward, as the court may consider
25 advisable in light of changes in applicable tax laws. The
26 guardian in his or her petition shall briefly outline the
27 action or application of funds for which he or she seeks
28 approval, the results expected to be accomplished
29 thereby, and the tax savings, if any, expected to accrue.
30 The proposed action or application of funds may include
31 gifts of the ward's personal property or real estate, but
32 transfers of real estate shall be subject to the
33 requirements of Section 20 of this Act. Gifts may be for
34 the benefit of prospective legatees, devisees, or heirs
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1 apparent of the ward or may be made to individuals or
2 charities in which the ward is believed to have an
3 interest. The guardian shall also indicate in the
4 petition that any planned disposition is consistent with
5 the intentions of the ward insofar as they can be
6 ascertained, and if the ward's intentions cannot be
7 ascertained, the ward will be presumed to favor reduction
8 in the incidents of various forms of taxation and the
9 partial distribution of his or her estate as provided in
10 this subsection. The guardian shall not, however, be
11 required to include as a beneficiary or fiduciary any
12 person who he has reason to believe would be excluded by
13 the ward. A guardian shall be required to investigate
14 and pursue a ward's eligibility for governmental
15 benefits.
16 (b) Upon the direction of the court which issued his
17 letters, a guardian may perform the contracts of his ward
18 which were legally subsisting at the time of the commencement
19 of the ward's disability. The court may authorize the
20 guardian to execute and deliver any bill of sale, deed or
21 other instrument.
22 (c) The guardian of the estate of a ward shall appear
23 for and represent the ward in all legal proceedings unless
24 another person is appointed for that purpose as guardian or
25 next friend. This does not impair the power of any court to
26 appoint a guardian ad litem or next friend to defend the
27 interests of the ward in that court, or to appoint or allow
28 any person as the next friend of a ward to commence,
29 prosecute or defend any proceeding in his behalf. Without
30 impairing the power of the court in any respect, if the
31 guardian of the estate of a ward and another person as next
32 friend shall appear for and represent the ward in a legal
33 proceeding in which the compensation of the attorney or
34 attorneys representing the guardian and next friend is solely
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1 determined under a contingent fee arrangement, the guardian
2 of the estate of the ward shall not participate in or have
3 any duty to review the prosecution of the action, to
4 participate in or review the appropriateness of any
5 settlement of the action, or to participate in or review any
6 determination of the appropriateness of any fees awarded to
7 the attorney or attorneys employed in the prosecution of the
8 action.
9 (d) Adjudication of disability shall not revoke or
10 otherwise terminate a trust which is revocable by the ward.
11 A guardian of the estate shall have no authority to revoke a
12 trust that is revocable by the ward, except that the court
13 may authorize a guardian to revoke a Totten trust or similar
14 deposit or withdrawable capital account in trust to the
15 extent necessary to provide funds for the purposes specified
16 in paragraph (a) of this Section. If the trustee of any
17 trust for the benefit of the ward has discretionary power to
18 apply income or principal for the ward's benefit, the trustee
19 shall not be required to distribute any of the income or
20 principal to the guardian of the ward's estate, but the
21 guardian may bring an action on behalf of the ward to compel
22 the trustee to exercise the trustee's discretion or to seek
23 relief from an abuse of discretion. This paragraph shall not
24 limit the right of a guardian of the estate to receive
25 accountings from the trustee on behalf of the ward.
26 (e) Absent court order pursuant to the "Illinois Power
27 of Attorney Act" enacted by the 85th General Assembly
28 directing a guardian to exercise powers of the principal
29 under an agency that survives disability, the guardian will
30 have no power, duty or liability with respect to any property
31 subject to the agency. This subsection (e) applies to all
32 agencies, whenever and wherever executed.
33 (f) Upon petition by any interested person (including
34 the standby or short-term guardian), with such notice to
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1 interested persons as the court directs and a finding by the
2 court that it is in the best interest of the disabled person,
3 the court may terminate or limit the authority of a standby
4 or short-term guardian or may enter such other orders as the
5 court deems necessary to provide for the best interest of the
6 disabled person. The petition for termination or limitation
7 of the authority of a standby or short-term guardian may, but
8 need not, be combined with a petition to have another
9 guardian appointed for the disabled person.
10 (Source: P.A. 89-672, eff. 8-14-96; 90-345, eff. 8-8-97.)
11 (755 ILCS 5/11a-18.2 new)
12 Sec. 11a-18.2. Duties of standby guardian of a disabled
13 person.
14 (a) Before a standby guardian of a disabled person may
15 act, the standby guardian must be appointed by the court of
16 the proper county and, in the case of a standby guardian of
17 the disabled person's estate, the standby guardian must give
18 the bond prescribed in subsection (c) of Section 11a-3.1 and
19 Section 12-2.
20 (b) The standby guardian shall not have any duties or
21 authority to act until the standby guardian receives
22 knowledge of the death or consent of the disabled person's
23 guardian, or the inability of the disabled person's guardian
24 to make and carry out day-to-day care decisions concerning
25 the disabled person for whom the standby guardian has been
26 appointed. This inability of the disabled person's guardian
27 to make and carry out day-to-day care decisions may be
28 communicated either by the guardian's own admission or by the
29 written certification of the guardian's attending physician.
30 Immediately upon receipt of that knowledge, the standby
31 guardian shall assume all duties as guardian of the disabled
32 person as previously determined by the order appointing the
33 standby guardian, and as set forth in Sections 11a-17 and
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1 11a-18, and the standby guardian of the person shall have the
2 authority to act as guardian of the person without direction
3 of court for a period of up to 60 days, provided that the
4 authority of the standby guardian may be limited or
5 terminated by a court of competent jurisdiction.
6 (c) Within 60 days of the standby guardian's receipt of
7 knowledge of the death or consent of the disabled person's
8 guardian, or the inability of the disabled person's guardian
9 to make and carry out day-to-day care decisions concerning
10 the disabled person, the standby guardian shall file or cause
11 to be filed a petition for the appointment of a guardian of
12 the person or estate, or both, of the disabled person under
13 Section 11a-3.
14 (755 ILCS 5/11a-18.3 new)
15 Sec. 11a-18.3. Duties of short-term guardian of a
16 disabled person.
17 (a) Immediately upon the effective date of the
18 appointment of a short-term guardian, the short-term guardian
19 shall assume all duties as short-term guardian of the
20 disabled person as provided in this Section. The short-term
21 guardian of the person shall have authority to act as
22 short-term guardian, without direction of court, for the
23 duration of the appointment, which in no case shall exceed a
24 period of 60 days. The authority of the short-term guardian
25 may be limited or terminated by a court of competent
26 jurisdiction.
27 (b) Unless further specifically limited by the
28 instrument appointing the short-term guardian, a short-term
29 guardian shall have the authority to act as a guardian of the
30 person of a disabled person as prescribed in Section 11a-17,
31 but shall not have any authority to act as guardian of the
32 estate of a disabled person, except that a short-term
33 guardian shall have the authority to apply for and receive on
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1 behalf of the disabled person benefits to which the disabled
2 person may be entitled from or under federal, State, or local
3 organizations or programs.
4 (755 ILCS 5/11a-23)
5 Sec. 11a-23. Reliance on authority of guardian, standby
6 guardian, short-term guardian.
7 (a) For the purpose of this Section, "guardian",
8 "standby guardian", and "short-term guardian" includes
9 temporary, plenary, or limited guardians of all wards.
10 (b) Every health care provider and other person
11 (reliant) has the right to rely on any decision or direction
12 made by the guardian, standby guardian, or short-term
13 guardian that is not clearly contrary to the law, to the same
14 extent and with the same effect as though the decision or
15 direction had been made or given by the ward. Any person
16 dealing with the guardian, standby guardian, or short-term
17 guardian may presume in the absence of actual knowledge to
18 the contrary that the acts of the guardian, standby guardian,
19 or short-term guardian conform to the provisions of the law.
20 A reliant shall not be protected if the reliant has actual
21 knowledge that the guardian, standby guardian, or short-term
22 guardian is not entitled to act or that any particular action
23 or inaction is contrary to the provisions of the law.
24 (c) A health care provider (provider) who relies on and
25 carries out a guardian's, standby guardian's, or short-term
26 guardian's directions and who acts with due care and in
27 accordance with the law shall not be subject to any claim
28 based on lack of consent, or to criminal prosecution, or to
29 discipline for unprofessional conduct. Nothing in this
30 Section shall be deemed to protect a provider from liability
31 for the provider's own negligence in the performance of the
32 provider's duties or in carrying out any instructions of the
33 guardian, standby guardian, or short-term guardian, and
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1 nothing in this Section shall be deemed to alter the law of
2 negligence as it applies to the acts of any guardian or
3 provider.
4 (d) A guardian, standby guardian, or short term
5 guardian, who acts or refrains from acting is not subject to
6 criminal prosecution or any claim based upon lack of his or
7 her authority or failure to act, if the act or failure to act
8 was with due care and in accordance with law. The guardian,
9 standby guardian, or short term guardian, shall not be liable
10 merely because he or she may benefit from the act, has
11 individual or conflicting interests in relation to the care
12 and affairs of the ward, or acts in a different manner with
13 respect to the guardian's, standby guardian's, or short-term
14 guardian's own care or interests.
15 (Source: P.A. 89-438, eff. 12-15-95.)
16 (755 ILCS 5/12-2) (from Ch. 110 1/2, par. 12-2)
17 Sec. 12-2. Individual representative; oath and bond.
18 (a) Except as provided in subsection (b), before
19 undertaking the representative's duties, every individual
20 representative shall take and file an oath or affirmation
21 that the individual will faithfully discharge the duties of
22 the office of the representative according to law and shall
23 file in and have approved by the court a bond binding the
24 individual representative so to do. The court may waive the
25 filing of a bond of a representative of the person of a ward
26 or of a standby guardian of a minor or disabled person.
27 (b) Where bond or security is excused by the will or as
28 provided in subsection (b) of Section 12-4, the bond of the
29 representative in the amount from time to time required under
30 this Article shall be in full force and effect without
31 writing, unless the court requires the filing of a written
32 bond.
33 (Source: P.A. 88-529.)