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subsection (d-5) of Section lla-18 of this Act. This subsection |
(b) applies only to wills or codicils executed or modified |
after the effective date of this amendatory Act of the 99th |
General
Assembly. |
(Source: P.A. 80-808.)
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(755 ILCS 5/11a-18) (from Ch. 110 1/2, par. 11a-18)
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Sec. 11a-18. Duties of the estate guardian.
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(a) To the extent
specified in the order establishing the |
guardianship, the guardian of
the estate shall have the care, |
management and
investment of the estate, shall manage the |
estate frugally and shall
apply the income and principal of the |
estate so far as necessary for the
comfort and suitable support |
and education of the ward, his minor and adult
dependent |
children, and persons related by blood or marriage
who are |
dependent upon or entitled to support from him, or for any |
other
purpose which the court deems to be for the best |
interests of the ward,
and the court may approve the making on |
behalf of the ward of such
agreements as the court determines |
to be for the ward's best interests.
The guardian may make |
disbursement of his ward's
funds and estate directly to the |
ward or other distributee or in such
other manner and in such |
amounts as the court directs. If the estate of
a ward is |
derived in whole or in part from payments of compensation,
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adjusted compensation, pension, insurance or other similar |
benefits made
directly to the estate by the Veterans |
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Administration, notice of the
application for leave to invest |
or expend the ward's funds or estate,
together with a copy of |
the petition and proposed order, shall be given
to the |
Veterans' Administration Regional Office in this State at least |
7
days before the hearing on the application.
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(a-5) The probate court, upon petition of a guardian, other |
than the
guardian of a minor, and after notice to all other |
persons interested as the
court directs, may authorize the |
guardian to exercise any or all powers over
the estate and |
business affairs of the ward that the ward could exercise if
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present and not under disability. The court may authorize the |
taking of an
action or the application of funds not required |
for the ward's current and
future maintenance
and support in |
any manner approved by the court as being in keeping with the
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ward's wishes so far as they can be ascertained. The court must |
consider the
permanence of the ward's disabling condition and |
the natural objects of the
ward's bounty. In ascertaining and |
carrying
out the ward's wishes the court may consider, but |
shall not be limited to,
minimization of State or federal |
income, estate, or inheritance taxes; and
providing gifts to |
charities, relatives, and friends that would be likely
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recipients of donations from the ward. The ward's wishes as |
best they can be
ascertained shall be carried out, whether or |
not tax savings are involved.
Actions or applications of funds |
may include, but shall not be limited to, the
following:
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(1) making gifts of income or principal, or both, of |
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the estate, either
outright or in trust;
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(2) conveying, releasing, or disclaiming his or her |
contingent and
expectant interests in property, including |
marital property rights and any
right of survivorship |
incident to joint tenancy or tenancy by the entirety;
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(3) releasing or disclaiming his or her powers as |
trustee, personal
representative, custodian for minors, or |
guardian;
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(4) exercising, releasing, or disclaiming his or her |
powers as donee
of a power of appointment;
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(5) entering into contracts;
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(6) creating for the benefit of the ward or others, |
revocable or
irrevocable trusts of his or her property that |
may extend beyond his or her
disability or life;
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(7) exercising options of the ward to purchase or |
exchange
securities or other property;
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(8) exercising the rights of the ward to elect benefit |
or payment
options, to terminate, to change beneficiaries |
or ownership, to assign
rights, to borrow, or to receive |
cash value in return for a surrender of
rights under any |
one or more of the following:
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(i) life insurance policies, plans, or benefits,
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(ii) annuity policies, plans, or benefits,
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(iii) mutual fund and other dividend investment |
plans,
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(iv) retirement, profit sharing, and employee |
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welfare plans and
benefits;
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(9) exercising his or her right to claim or disclaim an |
elective share
in the estate of his or her deceased spouse |
and to renounce any interest by
testate or intestate |
succession or by inter vivos transfer;
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(10) changing the ward's residence or domicile; or
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(11) modifying by means of codicil or trust amendment |
the terms of the
ward's will or any revocable trust created |
by the ward, as the court may
consider advisable in light |
of changes in applicable tax laws.
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The guardian in his or her petition shall briefly outline |
the action or
application of funds for which he or she seeks |
approval, the results expected
to be accomplished thereby, and |
the tax savings, if any, expected to accrue.
The proposed |
action or application of funds may include gifts of the ward's
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personal property or real estate, but transfers of real estate |
shall be subject
to the requirements of Section 20 of this Act. |
Gifts may be for
the benefit of prospective legatees, devisees, |
or heirs apparent of the ward
or may be made to individuals or |
charities in which the ward is believed to
have an interest. |
The guardian shall also indicate in the petition that any
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planned disposition is consistent with the intentions of the |
ward insofar as
they can be ascertained, and if the ward's |
intentions cannot be ascertained,
the ward will be presumed to |
favor reduction in the incidents of various forms
of taxation |
and the partial distribution of his or her estate as provided |
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in
this subsection. The guardian shall not, however, be |
required to include as
a beneficiary or fiduciary any person |
who he has reason to believe would be
excluded by the ward. A |
guardian shall be required to investigate and pursue
a ward's |
eligibility for governmental benefits.
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(b) Upon the direction of the court which issued his |
letters,
a guardian may perform the contracts of his ward which |
were
legally subsisting at the time of the commencement of the |
ward's
disability. The court may authorize the guardian to |
execute and deliver
any bill of sale, deed or other instrument.
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(c) The guardian of the estate of a ward shall
appear for |
and represent the ward in all legal proceedings unless another
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person is appointed for that purpose as guardian or next |
friend. This does not
impair the power of any court to appoint |
a guardian ad litem or next friend
to defend the interests of |
the ward in that court, or to appoint or allow any
person as |
the next friend of a ward to commence, prosecute or defend any
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proceeding in his behalf. Without impairing the power of the |
court in any
respect, if the guardian of the estate of a ward |
and another person as next
friend shall appear for and |
represent the ward in a legal proceeding in which
the |
compensation of the attorney or attorneys representing the |
guardian and
next friend is solely determined under a |
contingent fee arrangement, the
guardian of the estate of the |
ward shall not participate in or have any duty
to review the |
prosecution of the action, to participate in or review the
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appropriateness of any settlement of the action, or to |
participate in or review
any determination of the |
appropriateness of any fees awarded to the attorney or
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attorneys employed in the prosecution of the action.
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(d) Adjudication of disability shall not revoke or
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otherwise terminate a trust which is revocable by the ward. A |
guardian of the
estate shall have no authority to revoke a |
trust that is revocable by the
ward, except that the court may |
authorize a guardian to revoke a Totten trust
or similar |
deposit or withdrawable capital account in trust to the extent
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necessary to provide funds for the purposes specified in |
paragraph (a) of
this Section. If the trustee of any trust for |
the benefit of the ward has
discretionary power to apply income |
or principal for the ward's benefit,
the trustee shall not be |
required to distribute any of the income or principal
to the |
guardian of the ward's estate, but the guardian may
bring an |
action on behalf of the ward to compel
the trustee to exercise |
the trustee's discretion or to seek relief from
an abuse of |
discretion. This paragraph shall not limit the right of a
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guardian of the estate to receive accountings from the trustee
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on behalf of the ward.
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(d-5) Upon a verified petition by the plenary or limited |
guardian of the estate or the request of the ward that is |
accompanied by a current physician's report that states the |
ward possesses testamentary capacity, the court may enter an |
order authorizing the ward to execute a will or codicil. In so |
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ordering, the court shall authorize the guardian to retain |
independent counsel for the ward with whom the ward may execute |
or modify a will or codicil. |
(e) Absent court order pursuant to the Illinois Power of |
Attorney
Act directing a guardian to exercise
powers of the |
principal under an agency that survives disability, the
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guardian will have no power, duty or liability with respect to |
any property
subject to the agency. This subsection (e) applies |
to all agencies,
whenever and wherever executed.
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(f) Upon petition by any interested person (including the |
standby or
short-term guardian), with such notice to interested |
persons as the court
directs and a finding by the court that it |
is in the best interest of the
disabled person, the court may |
terminate or limit the authority of a standby or
short-term |
guardian or may enter such other orders as the court deems |
necessary
to provide for the best interest of the disabled |
person. The petition for
termination or limitation of the |
authority of a standby or short-term guardian
may, but need |
not, be combined with a petition to have another guardian
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appointed for the disabled person.
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(Source: P.A. 95-331, eff. 8-21-07.)
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