Bill Text: IL SB1576 | 2021-2022 | 102nd General Assembly | Introduced


Bill Title: Amends the Guardians for Adults with Disabilities Article of the Probate Act of 1975. Provides that the required report that is attached to a petition for adjudication of disability and for appointment of a guardian may contain a psychological and mental capacity evaluation of the respondent that has been performed by a licensed clinical psychologist within 3 months of the date of the filing of the petition. Makes a corresponding change. Provides that the court may enter an order authorizing the ward to execute a will or codicil upon the request of the ward that is accompanied by a current licensed clinical psychologist's (as an alternative to a physician's) report that states the ward possesses testamentary capacity. Effective immediately.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2021-04-23 - Rule 3-9(a) / Re-referred to Assignments [SB1576 Detail]

Download: Illinois-2021-SB1576-Introduced.html


102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
SB1576

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 the required report that is attached to a petition for adjudication of disability and for appointment of a guardian may contain a psychological and mental capacity evaluation of the respondent that has been performed by a licensed clinical psychologist within 3 months of the date of the filing of the petition. Makes a corresponding change. Provides that the court may enter an order authorizing the ward to execute a will or codicil upon the request of the ward that is accompanied by a current licensed clinical psychologist's (as an alternative to a physician's) report that states the ward possesses testamentary capacity. Effective immediately.
LRB102 14665 LNS 20018 b

A BILL FOR

SB1576LRB102 14665 LNS 20018 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
17performed within 3 months of the date of the filing of the
18petition, or a psychological and mental capacity evaluation of
19the respondent that has been performed by a licensed clinical
20psychologist within 3 months of the date of the filing of the
21petition; (3) an opinion as to whether guardianship is needed,
22the type and scope of the guardianship needed, and the reasons
23therefor; (4) a recommendation as to the most suitable living

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1arrangement and, where appropriate, treatment or habilitation
2plan for the respondent and the reasons therefor; (5) the
3name, business address, business telephone number, and
4signatures of all persons who performed the evaluations upon
5which the report is based, one of whom shall be a licensed
6physician or a licensed clinical psychologist and a statement
7of the certification, license, or other credentials that
8qualify the evaluators who prepared the report.
9 (b) If for any reason no report accompanies the petition,
10the court shall order appropriate evaluations to be performed
11by a qualified person or persons and a report prepared and
12filed with the court at least 10 days prior to the hearing.
13 (b-5) Upon oral or written motion by the respondent or the
14guardian ad litem or upon the court's own motion, the court
15shall appoint one or more independent experts to examine the
16respondent. Upon the filing with the court of a verified
17statement of services rendered by the expert or experts, the
18court shall determine a reasonable fee for the services
19performed. If the respondent is unable to pay the fee, the
20court may enter an order upon the petitioner to pay the entire
21fee or such amount as the respondent is unable to pay. However,
22in cases where the Office of State Guardian is the petitioner,
23consistent with Section 30 of the Guardianship and Advocacy
24Act, no expert services fees shall be assessed against the
25Office of the State Guardian.
26 (c) Unless the court otherwise directs, any report

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1prepared pursuant to this Section shall not be made part of the
2public record of the proceedings but shall be available to the
3court or an appellate court in which the proceedings are
4subject to review, to the respondent, the petitioner, the
5guardian, and their attorneys, to the respondent's guardian ad
6litem, and to such other persons as the court may direct.
7(Source: P.A. 98-1094, eff. 1-1-15.)
8 (755 ILCS 5/11a-18) (from Ch. 110 1/2, par. 11a-18)
9 Sec. 11a-18. Duties of the estate guardian.
10 (a) To the extent specified in the order establishing the
11guardianship, the guardian of the estate shall have the care,
12management and investment of the estate, shall manage the
13estate frugally and shall apply the income and principal of
14the estate so far as necessary for the comfort and suitable
15support and education of the ward, his minor and adult
16dependent children, and persons related by blood or marriage
17who are dependent upon or entitled to support from him, or for
18any other purpose which the court deems to be for the best
19interests of the ward, and the court may approve the making on
20behalf of the ward of such agreements as the court determines
21to be for the ward's best interests. The guardian may make
22disbursement of his ward's funds and estate directly to the
23ward or other distributee or in such other manner and in such
24amounts as the court directs. If the estate of a ward is
25derived in whole or in part from payments of compensation,

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

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1may include, but shall not be limited to, the following:
2 (1) making gifts of income or principal, or both, of
3 the estate, either outright or in trust;
4 (2) conveying, releasing, or disclaiming his or her
5 contingent and expectant interests in property, including
6 marital property rights and any right of survivorship
7 incident to joint tenancy or tenancy by the entirety;
8 (3) releasing or disclaiming his or her powers as
9 trustee, personal representative, custodian for minors, or
10 guardian;
11 (4) exercising, releasing, or disclaiming his or her
12 powers as donee of a power of appointment;
13 (5) entering into contracts;
14 (6) creating for the benefit of the ward or others,
15 revocable or irrevocable trusts of his or her property
16 that may extend beyond his or her disability or life;
17 (7) exercising options of the ward to purchase or
18 exchange securities or other property;
19 (8) exercising the rights of the ward to elect benefit
20 or payment options, to terminate, to change beneficiaries
21 or ownership, to assign rights, to borrow, or to receive
22 cash value in return for a surrender of rights under any
23 one or more of the following:
24 (i) life insurance policies, plans, or benefits,
25 (ii) annuity policies, plans, or benefits,
26 (iii) mutual fund and other dividend investment

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

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

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

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1of a guardian of the estate to receive accountings from the
2trustee on behalf of the ward.
3 (d-5) Upon a verified petition by the plenary or limited
4guardian of the estate or the request of the ward that is
5accompanied by a current physician's or a licensed clinical
6psychologist's report that states the ward possesses
7testamentary capacity, the court may enter an order
8authorizing the ward to execute a will or codicil. In so
9ordering, the court shall authorize the guardian to retain
10independent counsel for the ward with whom the ward may
11execute or modify a will or codicil.
12 (e) Absent court order pursuant to the Illinois Power of
13Attorney Act directing a guardian to exercise powers of the
14principal under an agency that survives disability, the
15guardian will have no power, duty or liability with respect to
16any property subject to the agency. This subsection (e)
17applies to all agencies, whenever and wherever executed.
18 (f) Upon petition by any interested person (including the
19standby or short-term guardian), with such notice to
20interested persons as the court directs and a finding by the
21court that it is in the best interest of the person with a
22disability, the court may terminate or limit the authority of
23a standby or short-term guardian or may enter such other
24orders as the court deems necessary to provide for the best
25interest of the person with a disability. The petition for
26termination or limitation of the authority of a standby or

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1short-term guardian may, but need not, be combined with a
2petition to have another guardian appointed for the person
3with a disability.
4(Source: P.A. 101-329, eff. 8-9-19.)
5 Section 99. Effective date. This Act takes effect upon
6becoming law.
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