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 - Dead) 2021-04-23 - Rule 3-9(a) / Re-referred to Assignments [SB1576 Detail]
Download: Illinois-2021-SB1576-Introduced.html
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1 | AN ACT concerning civil law.
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2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
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4 | Section 5. The Probate Act of 1975 is amended by changing | |||||||||||||||||||||
5 | Sections 11a-9 and 11a-18 as follows:
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6 | (755 ILCS 5/11a-9) (from Ch. 110 1/2, par. 11a-9)
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7 | Sec. 11a-9. Report. ) | |||||||||||||||||||||
8 | (a) The petition for adjudication of disability
and for | |||||||||||||||||||||
9 | appointment of a guardian
should be accompanied by a report | |||||||||||||||||||||
10 | which contains (1) a description of
the nature and type of the | |||||||||||||||||||||
11 | respondent's disability and an assessment of how
the | |||||||||||||||||||||
12 | disability impacts on the ability of the respondent to make | |||||||||||||||||||||
13 | decisions or
to function independently; (2) an analysis and | |||||||||||||||||||||
14 | results of evaluations of
the respondent's mental and physical | |||||||||||||||||||||
15 | condition and, where
appropriate, educational condition, | |||||||||||||||||||||
16 | adaptive behavior , and social skills,
which have been | |||||||||||||||||||||
17 | performed within 3 months of the date of the filing of the
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18 | petition , or a psychological and mental capacity evaluation of | |||||||||||||||||||||
19 | the respondent that has been performed by a licensed clinical | |||||||||||||||||||||
20 | psychologist within 3 months of the date of the filing of the | |||||||||||||||||||||
21 | petition ; (3) an opinion as to whether guardianship is
needed, | |||||||||||||||||||||
22 | the type and scope of the guardianship needed, and the reasons
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23 | therefor; (4) a recommendation as to the most suitable living |
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1 | arrangement
and, where appropriate, treatment or habilitation | ||||||
2 | plan for the respondent
and the reasons therefor; (5) the | ||||||
3 | name, business address, business telephone number, and | ||||||
4 | signatures of all persons who performed
the evaluations upon | ||||||
5 | which the report is based, one of whom shall be
a licensed | ||||||
6 | physician or a licensed clinical psychologist and a statement | ||||||
7 | of the certification, license, or other
credentials that | ||||||
8 | qualify the evaluators who prepared the report.
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9 | (b) If for any reason no report accompanies the petition, | ||||||
10 | the court
shall order appropriate evaluations to be performed | ||||||
11 | by a qualified
person or persons and a report prepared and | ||||||
12 | filed with the court at least
10 days prior to the hearing.
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13 | (b-5) Upon oral or written motion by the respondent or the | ||||||
14 | guardian ad
litem or upon the court's own motion, the court | ||||||
15 | shall appoint one or more
independent experts to examine the | ||||||
16 | respondent. Upon the filing with the
court of a verified | ||||||
17 | statement of services rendered by the expert or
experts, the | ||||||
18 | court shall determine a reasonable fee for the services
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19 | performed. If the respondent is unable to pay the fee, the | ||||||
20 | court may
enter an order upon the petitioner to pay the entire | ||||||
21 | fee or such
amount as
the respondent is unable to pay.
However, | ||||||
22 | in cases where the Office of State Guardian is the petitioner,
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23 | consistent with Section 30 of the Guardianship and Advocacy | ||||||
24 | Act, no expert
services fees shall be assessed against the | ||||||
25 | Office of the State Guardian. | ||||||
26 | (c) Unless the court otherwise directs, any report |
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1 | prepared pursuant
to this Section shall not be made
part of the | ||||||
2 | public record of the proceedings but shall be available to
the | ||||||
3 | court or an appellate court in which the proceedings are | ||||||
4 | subject to
review, to the respondent, the petitioner, the | ||||||
5 | guardian, and their
attorneys, to the
respondent's guardian ad | ||||||
6 | litem, and to such other persons as the court
may direct.
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7 | (Source: P.A. 98-1094, eff. 1-1-15 .)
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8 | (755 ILCS 5/11a-18) (from Ch. 110 1/2, par. 11a-18)
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9 | Sec. 11a-18. Duties of the estate guardian.
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10 | (a) To the extent
specified in the order establishing the | ||||||
11 | guardianship, the guardian of
the estate shall have the care, | ||||||
12 | management and
investment of the estate, shall manage the | ||||||
13 | estate frugally and shall
apply the income and principal of | ||||||
14 | the estate so far as necessary for the
comfort and suitable | ||||||
15 | support and education of the ward, his minor and adult
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16 | dependent children, and persons related by blood or marriage
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17 | who are dependent upon or entitled to support from him, or for | ||||||
18 | any other
purpose which the court deems to be for the best | ||||||
19 | interests of the ward,
and the court may approve the making on | ||||||
20 | behalf of the ward of such
agreements as the court determines | ||||||
21 | to be for the ward's best interests.
The guardian may make | ||||||
22 | disbursement of his ward's
funds and estate directly to the | ||||||
23 | ward or other distributee or in such
other manner and in such | ||||||
24 | amounts as the court directs. If the estate of
a ward is | ||||||
25 | derived in whole or in part from payments of compensation,
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1 | adjusted compensation, pension, insurance or other similar | ||||||
2 | benefits made
directly to the estate by the Veterans | ||||||
3 | Administration, notice of the
application for leave to invest | ||||||
4 | or expend the ward's funds or estate,
together with a copy of | ||||||
5 | the petition and proposed order, shall be given
to the | ||||||
6 | Veterans' Administration Regional Office in this State at | ||||||
7 | least 7
days before the hearing on the application.
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8 | (a-5) The probate court, upon petition of a guardian, | ||||||
9 | other than the
guardian of a minor, and after notice to all | ||||||
10 | other persons interested as the
court directs, may authorize | ||||||
11 | the guardian to exercise any or all powers over
the estate and | ||||||
12 | business affairs of the ward that the ward could exercise if
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13 | present and not under disability. The court may authorize the | ||||||
14 | taking of an
action or the application of funds not required | ||||||
15 | for the ward's current and
future maintenance
and support in | ||||||
16 | any manner approved by the court as being in keeping with the
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17 | ward's wishes so far as they can be ascertained. The court must | ||||||
18 | consider the
permanence of the ward's disabling condition and | ||||||
19 | the natural objects of the
ward's bounty. In ascertaining and | ||||||
20 | carrying
out the ward's wishes the court may consider, but | ||||||
21 | shall not be limited to,
minimization of State or federal | ||||||
22 | income, estate, or inheritance taxes; and
providing gifts to | ||||||
23 | charities, relatives, and friends that would be likely
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24 | recipients of donations from the ward. The ward's wishes as | ||||||
25 | best they can be
ascertained shall be carried out, whether or | ||||||
26 | not tax savings are involved.
Actions or applications of funds |
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1 | may include, but shall not be limited to, the
following:
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2 | (1) making gifts of income or principal, or both, of | ||||||
3 | the estate, either
outright or in trust;
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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;
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8 | (3) releasing or disclaiming his or her powers as | ||||||
9 | trustee, personal
representative, custodian for minors, or | ||||||
10 | guardian;
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11 | (4) exercising, releasing, or disclaiming his or her | ||||||
12 | powers as donee
of a power of appointment;
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13 | (5) entering into contracts;
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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;
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17 | (7) exercising options of the ward to purchase or | ||||||
18 | exchange
securities or other property;
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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:
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24 | (i) life insurance policies, plans, or benefits,
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25 | (ii) annuity policies, plans, or benefits,
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26 | (iii) mutual fund and other dividend investment |
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1 | plans,
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2 | (iv) retirement, profit sharing, and employee | ||||||
3 | welfare plans and
benefits;
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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;
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8 | (10) changing the ward's residence or domicile; or
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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.
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13 | The guardian in his or her petition shall briefly outline | ||||||
14 | the action or
application of funds for which he or she seeks | ||||||
15 | approval, the results expected
to be accomplished thereby, and | ||||||
16 | the tax savings, if any, expected to accrue.
The proposed | ||||||
17 | action or application of funds may include gifts of the ward's
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18 | personal property or real estate, but transfers of real estate | ||||||
19 | shall be subject
to the requirements of Section 20 of this Act. | ||||||
20 | Gifts may be for
the benefit of prospective legatees, | ||||||
21 | devisees, or heirs apparent of the ward
or may be made to | ||||||
22 | individuals or charities in which the ward is believed to
have | ||||||
23 | an interest. The guardian shall also indicate in the petition | ||||||
24 | that any
planned disposition is consistent with the intentions | ||||||
25 | of the ward insofar as
they can be ascertained, and if the | ||||||
26 | ward's intentions cannot be ascertained,
the ward will be |
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1 | presumed to favor reduction in the incidents of various forms
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2 | of taxation and the partial distribution of his or her estate | ||||||
3 | as provided in
this subsection. The guardian shall not, | ||||||
4 | however, be required to include as
a beneficiary or fiduciary | ||||||
5 | any person who he has reason to believe would be
excluded by | ||||||
6 | the ward. A guardian shall be required to investigate and | ||||||
7 | pursue
a ward's eligibility for governmental benefits.
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8 | (a-6) The guardian may, without an order of court, open, | ||||||
9 | maintain, and transfer funds to an ABLE account on behalf of | ||||||
10 | the ward and the ward's minor and adult dependent children as | ||||||
11 | specified under Section 16.6 of the State Treasurer Act. | ||||||
12 | (b) Upon the direction of the court which issued his | ||||||
13 | letters,
a guardian may perform the contracts of his ward | ||||||
14 | which were
legally subsisting at the time of the commencement | ||||||
15 | of the ward's
disability. The court may authorize the guardian | ||||||
16 | to execute and deliver
any bill of sale, deed or other | ||||||
17 | instrument.
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18 | (c) The guardian of the estate of a ward shall
appear for | ||||||
19 | and represent the ward in all legal proceedings unless another
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20 | person is appointed for that purpose as guardian or next | ||||||
21 | friend. This does not
impair the power of any court to appoint | ||||||
22 | a guardian ad litem or next friend
to defend the interests of | ||||||
23 | the ward in that court, or to appoint or allow any
person as | ||||||
24 | the next friend of a ward to commence, prosecute or defend any
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25 | proceeding in his behalf. Without impairing the power of the | ||||||
26 | court in any
respect, if the guardian of the estate of a ward |
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1 | and another person as next
friend shall appear for and | ||||||
2 | represent the ward in a legal proceeding in which
the | ||||||
3 | compensation of the attorney or attorneys representing the | ||||||
4 | guardian and
next friend is solely determined under a | ||||||
5 | contingent fee arrangement, the
guardian of the estate of the | ||||||
6 | ward shall not participate in or have any duty
to review the | ||||||
7 | prosecution of the action, to participate in or review the
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8 | appropriateness of any settlement of the action, or to | ||||||
9 | participate in or review
any determination of the | ||||||
10 | appropriateness of any fees awarded to the attorney or
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11 | attorneys employed in the prosecution of the action.
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12 | (d) Adjudication of disability shall not revoke or
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13 | otherwise terminate a trust which is revocable by the ward. A | ||||||
14 | guardian of the
estate shall have no authority to revoke a | ||||||
15 | trust that is revocable by the
ward, except that the court may | ||||||
16 | authorize a guardian to revoke a Totten trust
or similar | ||||||
17 | deposit or withdrawable capital account in trust to the extent
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18 | necessary to provide funds for the purposes specified in | ||||||
19 | paragraph (a) of
this Section. If the trustee of any trust for | ||||||
20 | the benefit of the ward has
discretionary power to apply | ||||||
21 | income or principal for the ward's benefit,
the trustee shall | ||||||
22 | not be required to distribute any of the income or principal
to | ||||||
23 | the guardian of the ward's estate, but the guardian may
bring | ||||||
24 | an action on behalf of the ward to compel
the trustee to | ||||||
25 | exercise the trustee's discretion or to seek relief from
an | ||||||
26 | abuse of discretion. This paragraph shall not limit the right |
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1 | of a
guardian of the estate to receive accountings from the | ||||||
2 | trustee
on behalf of the ward.
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3 | (d-5) Upon a verified petition by the plenary or limited | ||||||
4 | guardian of the estate or the request of the ward that is | ||||||
5 | accompanied by a current physician's or a licensed clinical | ||||||
6 | psychologist's report that states the ward possesses | ||||||
7 | testamentary capacity, the court may enter an order | ||||||
8 | authorizing the ward to execute a will or codicil. In so | ||||||
9 | ordering, the court shall authorize the guardian to retain | ||||||
10 | independent counsel for the ward with whom the ward may | ||||||
11 | execute or modify a will or codicil. | ||||||
12 | (e) Absent court order pursuant to the Illinois Power of | ||||||
13 | Attorney
Act directing a guardian to exercise
powers of the | ||||||
14 | principal under an agency that survives disability, the
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15 | guardian will have no power, duty or liability with respect to | ||||||
16 | any property
subject to the agency. This subsection (e) | ||||||
17 | applies to all agencies,
whenever and wherever executed.
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18 | (f) Upon petition by any interested person (including the | ||||||
19 | standby or
short-term guardian), with such notice to | ||||||
20 | interested persons as the court
directs and a finding by the | ||||||
21 | court that it is in the best interest of the
person with a | ||||||
22 | disability, the court may terminate or limit the authority of | ||||||
23 | a standby or
short-term guardian or may enter such other | ||||||
24 | orders as the court deems necessary
to provide for the best | ||||||
25 | interest of the person with a disability. The petition for
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26 | termination or limitation of the authority of a standby or |
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1 | short-term guardian
may, but need not, be combined with a | ||||||
2 | petition to have another guardian
appointed for the person | ||||||
3 | with a disability.
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4 | (Source: P.A. 101-329, eff. 8-9-19.)
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5 | Section 99. Effective date. This Act takes effect upon | ||||||
6 | becoming law.
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