Bill Text: IL SB2547 | 2011-2012 | 97th General Assembly | Introduced

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Bill Title: Amends the Guardians For Disabled Adults Article of the Probate Act of 1975. Sets forth procedures for a guardian to seek authority to consent to the initiation of a proceeding for dissolution of the marriage of a ward and for the court to determine whether such authority should be granted. Contains provisions regarding: motions; appointment and duties of a guardian ad litem; appointment of counsel for the ward; evaluations; the ward's capacity to consent or withhold consent to the proposed dissolution; criteria for authorizing a guardian to consent to the initiation of a proceeding for dissolution of the marriage of a ward; and other matters.

Sponsorship: Partisan Bill (Democrat 1)

Status: (Failed) 2013-01-08 - Session Sine Die [SB2547 Detail]

Download: Illinois-2011-SB2547-Introduced.html

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97TH GENERAL ASSEMBLY State of Illinois 2011 and 2012 SB2547 Introduced 1/11/2012, by Sen. Ira I. Silverstein SYNOPSIS AS INTRODUCED:
755 ILCS 5/11a-17.2 new
Amends the Illinois Marriage and Dissolution of Marriage Act. Provides procedures and standards for a guardian to initiate a dissolution of marriage or to not contest a dissolution of marriage.
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A BILL FOR
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AN ACT concerning civil law.
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 adding
Section 11a-17.2 as follows:
(755 ILCS 5/11a-17.2 new)
Sec. 11a-17.2. Initiating dissolution proceedings for
ward.
(a) A guardian of the person shall not consent to the
initiation of a dissolution proceeding on behalf of a married
ward without first obtaining an order from the court granting
the guardian the authority to provide consent.
(b) A guardian seeking authority to consent to the
initiation of a dissolution of the marriage of the ward shall
seek such authority by filing a verified motion. The verified
motion shall allege facts which demonstrate that the proposed
dissolution is warranted under subsection (f), (g), or (h) of
this Section. The guardian ad litem will notify the ward of the
motion in the manner set forth in subsection (c) of this
Section.
(c) Upon the filing of a verified motion for authority to
initiate a dissolution of the marriage of a ward, the court
shall appoint a guardian ad litem to report to the court

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consistent with the provisions of this Section. If the guardian
ad litem is not a licensed attorney, he or she shall be
qualified, by training or experience, to work with or advocate
for persons with a developmental disability, mental illness,
physical disability, or disability because of mental
deterioration, depending on the type of disability of the ward
that is alleged in the motion. The court may allow the guardian
ad litem reasonable compensation. The guardian ad litem may
consult with a person who by training or experience is
qualified to work with persons with a developmental disability,
mental illness, physical disability, or disability because of
mental deterioration, depending on the type of disability of
the ward that is alleged. The guardian ad litem may also
consult with health care providers knowledgeable about the
traumatic or psychological effects of dissolution on an
individual, particularly a disabled individual. Outside the
presence of the guardian, the guardian ad litem shall
personally observe the ward prior to the hearing and shall
inform the ward orally and in writing of the contents of the
verified motion for authority to consent to initiation of a
dissolution proceeding. Outside the presence of the guardian,
the guardian ad litem shall also attempt to elicit the ward's
position concerning the motion, and any other areas of inquiry
deemed appropriate by the court. At or before the hearing, the
guardian ad litem shall file a written report detailing his or
her observations of the ward; the responses of the ward to any

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of the inquiries detailed in this Section; the opinion of the
guardian ad litem and any other professionals with whom the
guardian ad litem consulted concerning the ward's
understanding of and desire for or objection to, as well as
what is in the ward's best interest relative to, dissolution;
and any other material issue discovered by the guardian ad
litem. The guardian ad litem shall appear at the hearing and
testify, and may present witnesses, as to any issues presented
in his or her report.
(d) The court (1) may appoint counsel for the ward if the
court finds that the interests of the ward will be best served
by the appointment, and (2) shall appoint counsel upon the
ward's request, if the ward is objecting to the proposed
dissolution or if the ward takes a position adverse to that of
the guardian ad litem. The ward shall be permitted to obtain
the appointment of counsel either at the hearing or by any
written or oral request communicated to the court prior to the
hearing. The court shall inform the ward of this right to
obtain appointed counsel. The court may allow counsel for the
ward reasonable compensation.
(e) The court may order a medical and psychological
evaluation of the ward. The evaluation shall address the ward's
decision making capacity with respect to the proposed
dissolution, the existence of any less permanent alternatives,
and any other material issue.
(f) The court shall determine, as a threshold inquiry,

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whether the ward has capacity to consent or withhold consent to
the proposed dissolution and, if the ward lacks such capacity,
whether the ward is likely to regain such capacity. The ward
shall not be deemed to lack such capacity solely on the basis
of the adjudication of disability and appointment of a
guardian. If the court finds that (1) the ward has capacity to
consent or withhold consent to the proposed dissolution and (2)
the ward objects or consents to the legal proceeding the court
shall enter an order consistent with the ward's objection or
consent and the proceedings on the verified motion shall be
terminated.
(g) If the court finds that the ward does not have capacity
to consent or withhold consent to the proposed dissolution and
is unlikely to regain such capacity, the court shall determine
whether the ward is expressing a clear desire for the proposed
divorce. If the ward is expressing a clear desire for the
proposed divorce, the court's decision regarding the proposed
divorce shall be made in accordance with the standards set
forth in subsection (e) of Section 11a-17 of this Act.
(h) If the court finds that the ward does not have capacity
to consent or withhold consent to the proposed dissolution and
is unlikely to regain such capacity, and that the ward is not
expressing a clear desire for the proposed dissolution the
court shall consider the standards set forth in subsection (e)
of Section 11a-17 of this Act and enter written findings of
fact and conclusions of law addressing those standards. In

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addition, the court shall not authorize the guardian to consent
to the proposed initiation of a dissolution of marriage
proceeding unless the court finds, by clear and convincing
evidence and based on written findings of fact and conclusions
of law, that all of the following factors are present:
(1) The ward lacks decisional capacity regarding the
proposed dissolution.
(2) The benefits to the ward of the proposed
dissolution outweigh the harm.
(3) The court has considered less intrusive
alternatives and found them to be inadequate in this case.
(4) The proposed dissolution is in the best interest of
the ward, taking into consideration the possibility that
the ward will experience trauma or psychological damage if
she is divorced, or conversely, the possibility of trauma
or psychological damage if she remains married.