Public Act 90-0345 of the 90th General Assembly
Public Act 90-0345
HB1779 Enrolled LRB9004022SMdv
AN ACT to amend the Probate Act of 1975 by changing
Sections 11-13 and 11a-18.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Probate Act of 1975 is amended by
changing Sections 11-13 and 11a-18 as follows:
(755 ILCS 5/11-13) (from Ch. 110 1/2, par. 11-13)
Sec. 11-13. Duties of guardian of a minor. Before a
guardian of a minor may act, the guardian shall be appointed
by the court of the proper county and, in the case of a
guardian of the minor's estate, the guardian shall give the
bond prescribed in Section 12-2. Except as provided in
Section 11-13.1 and Section 11-13.2 with respect to the
standby or short-term guardian of the person of a minor, the
court shall have control over the person and estate of the
ward. Under the direction of the court:
(a) The guardian of the person shall have the custody,
nurture and tuition and shall provide education of the ward
and of his children, but the ward's spouse may not be
deprived of the custody and education of the spouse's
children, without consent of the spouse, unless the court
finds that the spouse is not a fit and competent person to
have such custody and education. If the ward's estate is
insufficient to provide for the ward's education and the
guardian of his person fails to provide education, the court
may award the custody of the ward to some other person for
the purpose of providing education. If a person makes a
settlement upon or provision for the support or education of
a ward and if either parent of the ward is dead, the court
may make such order for the visitation of the ward by the
person making the settlement or provision as the court deems
proper.
(b) The guardian or other representative of the ward's
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 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
representative 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, adjusted compensation, pension,
insurance or other similar benefits made directly to the
estate by the Veterans 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.
(c) Upon the direction of the court which issued his
letters a representative may perform the contracts of his
ward which were legally subsisting at the time of the
commencement of the guardianship. The court may authorize
the guardian to execute and deliver any bill of sale, deed or
other instrument.
(d) The representative of the estate of a ward shall
appear for and represent the ward in all legal proceedings
unless another person is appointed for that purpose as
representative or next friend. This does not impair the
power of any court to appoint a representative 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 proceeding in his behalf.
Any proceeding on behalf of a minor may be commenced and
prosecuted by his next friend, without any previous authority
or appointment by the court if the next friend enters bond
for costs and files it in the court where the proceeding is
pending. Without impairing the power of the court in any
respect, if the representative of the estate of a minor and
another person as next friend shall appear for and represent
the minor 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 minor shall
not participate in or have any duty to review the prosecution
of the action, to participate in or review the
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
attorneys employed in the prosecution of the action.
(e) 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 minor, 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
minor. 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 a guardian appointed
for the minor.
(Source: P.A. 88-529.)
(755 ILCS 5/11a-18) (from Ch. 110 1/2, par. 11a-18)
Sec. 11a-18. Duties of the estate guardian.
(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, adjusted compensation, pension, insurance or
other similar benefits made directly to the estate by the
Veterans 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.
(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 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 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 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:
(1) making gifts of income or principal, or both,
of the estate, either outright or in trust;
(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;
(3) releasing or disclaiming his or her powers as
trustee, personal representative, custodian for minors,
or guardian;
(4) exercising, releasing, or disclaiming his or
her powers as donee of a power of appointment;
(5) entering into contracts;
(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.
(7) exercising options of the ward to purchase or
exchange securities or other property;
(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:
(i) Life insurance policies, plans, or
benefits.
(ii) Annuity policies, plans, or benefits.
(iii) Mutual fund and other dividend
investment plans.
(iv) Retirement, profit sharing, and employee
welfare plans and benefits;
(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;
(10) changing the ward's residence or domicile; or
(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. 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 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 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 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.
(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.
(c) The guardian of the estate of a ward shall appear
for and represent the ward in all legal proceedings unless
another 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 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 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 attorneys employed in the prosecution of the
action.
(d) Adjudication of disability shall not revoke or
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 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 guardian of the estate to receive
accountings from the trustee on behalf of the ward.
(e) Absent court order pursuant to the "Illinois Power
of Attorney Act" enacted by the 85th General Assembly
directing a guardian to exercise powers of the principal
under an agency that survives disability, the 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.
(Source: P.A. 89-672, eff. 8-14-96.)
Section 99. Effective date. This Act takes effect upon
becoming law.