Bill Text: IL SB1568 | 2021-2022 | 102nd General Assembly | Introduced


Bill Title: Amends the Guardians for Adults with Disabilities Article of the Probate Act of 1975. Provides that one of the persons who performed the evaluations upon which the report relating to the adjudication of disability is based shall be a licensed physician or a licensed clinical psychologist (rather than "shall be a licensed physician"). Provides that the report in support of a verified petition to allow a ward to execute a will or codicil may be from a licensed clinical psychologist (rather than only a current physician).

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2021-04-16 - Rule 3-9(a) / Re-referred to Assignments [SB1568 Detail]

Download: Illinois-2021-SB1568-Introduced.html


102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
SB1568

Introduced 2/26/2021, by Sen. Robert F. Martwick

SYNOPSIS AS INTRODUCED:
755 ILCS 5/11a-9 from Ch. 110 1/2, par. 11a-9
755 ILCS 5/11a-18 from Ch. 110 1/2, par. 11a-18

Amends the Guardians for Adults with Disabilities Article of the Probate Act of 1975. Provides that one of the persons who performed the evaluations upon which the report relating to the adjudication of disability is based shall be a licensed physician or a licensed clinical psychologist (rather than "shall be a licensed physician"). Provides that the report in support of a verified petition to allow a ward to execute a will or codicil may be from a licensed clinical psychologist (rather than only a current physician).
LRB102 13392 LNS 18736 b

A BILL FOR

SB1568LRB102 13392 LNS 18736 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 11a-9 and 11a-18 as follows:
6 (755 ILCS 5/11a-9) (from Ch. 110 1/2, par. 11a-9)
7 Sec. 11a-9. Report.)
8 (a) The petition for adjudication of disability and for
9appointment of a guardian should be accompanied by a report
10which contains (1) a description of the nature and type of the
11respondent's disability and an assessment of how the
12disability impacts on the ability of the respondent to make
13decisions or to function independently; (2) an analysis and
14results of evaluations of the respondent's mental and physical
15condition and, where appropriate, educational condition,
16adaptive behavior and social skills, which have been performed
17within 3 months of the date of the filing of the petition; (3)
18an opinion as to whether guardianship is needed, the type and
19scope of the guardianship needed, and the reasons therefor;
20(4) a recommendation as to the most suitable living
21arrangement and, where appropriate, treatment or habilitation
22plan for the respondent and the reasons therefor; (5) the
23name, business address, business telephone number, and

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1signatures of all persons who performed the evaluations upon
2which the report is based, one of whom shall be a licensed
3physician or a licensed clinical psychologist, and a statement
4of the certification, license, or other credentials that
5qualify the evaluators who prepared the report.
6 (b) If for any reason no report accompanies the petition,
7the court shall order appropriate evaluations to be performed
8by a qualified person or persons and a report prepared and
9filed with the court at least 10 days prior to the hearing.
10 (b-5) Upon oral or written motion by the respondent or the
11guardian ad litem or upon the court's own motion, the court
12shall appoint one or more independent experts to examine the
13respondent. Upon the filing with the court of a verified
14statement of services rendered by the expert or experts, the
15court shall determine a reasonable fee for the services
16performed. If the respondent is unable to pay the fee, the
17court may enter an order upon the petitioner to pay the entire
18fee or such amount as the respondent is unable to pay. However,
19in cases where the Office of State Guardian is the petitioner,
20consistent with Section 30 of the Guardianship and Advocacy
21Act, no expert services fees shall be assessed against the
22Office of the State Guardian.
23 (c) Unless the court otherwise directs, any report
24prepared pursuant to this Section shall not be made part of the
25public record of the proceedings but shall be available to the
26court or an appellate court in which the proceedings are

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1subject to review, to the respondent, the petitioner, the
2guardian, and their attorneys, to the respondent's guardian ad
3litem, and to such other persons as the court may direct.
4(Source: P.A. 98-1094, eff. 1-1-15.)
5 (755 ILCS 5/11a-18) (from Ch. 110 1/2, par. 11a-18)
6 Sec. 11a-18. Duties of the estate guardian.
7 (a) To the extent specified in the order establishing the
8guardianship, the guardian of the estate shall have the care,
9management and investment of the estate, shall manage the
10estate frugally and shall apply the income and principal of
11the estate so far as necessary for the comfort and suitable
12support and education of the ward, his minor and adult
13dependent children, and persons related by blood or marriage
14who are dependent upon or entitled to support from him, or for
15any other purpose which the court deems to be for the best
16interests of the ward, and the court may approve the making on
17behalf of the ward of such agreements as the court determines
18to be for the ward's best interests. The guardian may make
19disbursement of his ward's funds and estate directly to the
20ward or other distributee or in such other manner and in such
21amounts as the court directs. If the estate of a ward is
22derived in whole or in part from payments of compensation,
23adjusted compensation, pension, insurance or other similar
24benefits made directly to the estate by the Veterans
25Administration, notice of the application for leave to invest

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1or expend the ward's funds or estate, together with a copy of
2the petition and proposed order, shall be given to the
3Veterans' Administration Regional Office in this State at
4least 7 days before the hearing on the application.
5 (a-5) The probate court, upon petition of a guardian,
6other than the guardian of a minor, and after notice to all
7other persons interested as the court directs, may authorize
8the guardian to exercise any or all powers over the estate and
9business affairs of the ward that the ward could exercise if
10present and not under disability. The court may authorize the
11taking of an action or the application of funds not required
12for the ward's current and future maintenance and support in
13any manner approved by the court as being in keeping with the
14ward's wishes so far as they can be ascertained. The court must
15consider the permanence of the ward's disabling condition and
16the natural objects of the ward's bounty. In ascertaining and
17carrying out the ward's wishes the court may consider, but
18shall not be limited to, minimization of State or federal
19income, estate, or inheritance taxes; and providing gifts to
20charities, relatives, and friends that would be likely
21recipients of donations from the ward. The ward's wishes as
22best they can be ascertained shall be carried out, whether or
23not tax savings are involved. Actions or applications of funds
24may include, but shall not be limited to, the following:
25 (1) making gifts of income or principal, or both, of
26 the estate, either outright or in trust;

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1 (2) conveying, releasing, or disclaiming his or her
2 contingent and expectant interests in property, including
3 marital property rights and any right of survivorship
4 incident to joint tenancy or tenancy by the entirety;
5 (3) releasing or disclaiming his or her powers as
6 trustee, personal representative, custodian for minors, or
7 guardian;
8 (4) exercising, releasing, or disclaiming his or her
9 powers as donee of a power of appointment;
10 (5) entering into contracts;
11 (6) creating for the benefit of the ward or others,
12 revocable or irrevocable trusts of his or her property
13 that may extend beyond his or her disability or life;
14 (7) exercising options of the ward to purchase or
15 exchange securities or other property;
16 (8) exercising the rights of the ward to elect benefit
17 or payment options, to terminate, to change beneficiaries
18 or ownership, to assign rights, to borrow, or to receive
19 cash value in return for a surrender of rights under any
20 one or more of the following:
21 (i) life insurance policies, plans, or benefits,
22 (ii) annuity policies, plans, or benefits,
23 (iii) mutual fund and other dividend investment
24 plans,
25 (iv) retirement, profit sharing, and employee
26 welfare plans and benefits;

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1 (9) exercising his or her right to claim or disclaim
2 an elective share in the estate of his or her deceased
3 spouse and to renounce any interest by testate or
4 intestate succession or by inter vivos transfer;
5 (10) changing the ward's residence or domicile; or
6 (11) modifying by means of codicil or trust amendment
7 the terms of the ward's will or any revocable trust
8 created by the ward, as the court may consider advisable
9 in light of changes in applicable tax laws.
10 The guardian in his or her petition shall briefly outline
11the action or application of funds for which he or she seeks
12approval, the results expected to be accomplished thereby, and
13the tax savings, if any, expected to accrue. The proposed
14action or application of funds may include gifts of the ward's
15personal property or real estate, but transfers of real estate
16shall be subject to the requirements of Section 20 of this Act.
17Gifts may be for the benefit of prospective legatees,
18devisees, or heirs apparent of the ward or may be made to
19individuals or charities in which the ward is believed to have
20an interest. The guardian shall also indicate in the petition
21that any planned disposition is consistent with the intentions
22of the ward insofar as they can be ascertained, and if the
23ward's intentions cannot be ascertained, the ward will be
24presumed to favor reduction in the incidents of various forms
25of taxation and the partial distribution of his or her estate
26as provided in this subsection. The guardian shall not,

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1however, be required to include as a beneficiary or fiduciary
2any person who he has reason to believe would be excluded by
3the ward. A guardian shall be required to investigate and
4pursue a ward's eligibility for governmental benefits.
5 (a-6) The guardian may, without an order of court, open,
6maintain, and transfer funds to an ABLE account on behalf of
7the ward and the ward's minor and adult dependent children as
8specified under Section 16.6 of the State Treasurer Act.
9 (b) Upon the direction of the court which issued his
10letters, a guardian may perform the contracts of his ward
11which were legally subsisting at the time of the commencement
12of the ward's disability. The court may authorize the guardian
13to execute and deliver any bill of sale, deed or other
14instrument.
15 (c) The guardian of the estate of a ward shall appear for
16and represent the ward in all legal proceedings unless another
17person is appointed for that purpose as guardian or next
18friend. This does not impair the power of any court to appoint
19a guardian ad litem or next friend to defend the interests of
20the ward in that court, or to appoint or allow any person as
21the next friend of a ward to commence, prosecute or defend any
22proceeding in his behalf. Without impairing the power of the
23court in any respect, if the guardian of the estate of a ward
24and another person as next friend shall appear for and
25represent the ward in a legal proceeding in which the
26compensation of the attorney or attorneys representing the

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1guardian and next friend is solely determined under a
2contingent fee arrangement, the guardian of the estate of the
3ward shall not participate in or have any duty to review the
4prosecution of the action, to participate in or review the
5appropriateness of any settlement of the action, or to
6participate in or review any determination of the
7appropriateness of any fees awarded to the attorney or
8attorneys employed in the prosecution of the action.
9 (d) Adjudication of disability shall not revoke or
10otherwise terminate a trust which is revocable by the ward. A
11guardian of the estate shall have no authority to revoke a
12trust that is revocable by the ward, except that the court may
13authorize a guardian to revoke a Totten trust or similar
14deposit or withdrawable capital account in trust to the extent
15necessary to provide funds for the purposes specified in
16paragraph (a) of this Section. If the trustee of any trust for
17the benefit of the ward has discretionary power to apply
18income or principal for the ward's benefit, the trustee shall
19not be required to distribute any of the income or principal to
20the guardian of the ward's estate, but the guardian may bring
21an action on behalf of the ward to compel the trustee to
22exercise the trustee's discretion or to seek relief from an
23abuse of discretion. This paragraph shall not limit the right
24of a guardian of the estate to receive accountings from the
25trustee on behalf of the ward.
26 (d-5) Upon a verified petition by the plenary or limited

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1guardian of the estate or the request of the ward that is
2accompanied by a current physician's or licensed clinical
3psychologist's report that states the ward possesses
4testamentary capacity, the court may enter an order
5authorizing the ward to execute a will or codicil. In so
6ordering, the court shall authorize the guardian to retain
7independent counsel for the ward with whom the ward may
8execute or modify a will or codicil.
9 (e) Absent court order pursuant to the Illinois Power of
10Attorney Act directing a guardian to exercise powers of the
11principal under an agency that survives disability, the
12guardian will have no power, duty or liability with respect to
13any property subject to the agency. This subsection (e)
14applies to all agencies, whenever and wherever executed.
15 (f) Upon petition by any interested person (including the
16standby or short-term guardian), with such notice to
17interested persons as the court directs and a finding by the
18court that it is in the best interest of the person with a
19disability, the court may terminate or limit the authority of
20a standby or short-term guardian or may enter such other
21orders as the court deems necessary to provide for the best
22interest of the person with a disability. The petition for
23termination or limitation of the authority of a standby or
24short-term guardian may, but need not, be combined with a
25petition to have another guardian appointed for the person
26with a disability.

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1(Source: P.A. 101-329, eff. 8-9-19.)
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