Sen. Ira I. Silverstein

Filed: 2/28/2012

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 3594

2    AMENDMENT NO. ______. Amend Senate Bill 3594 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Probate Act of 1975 is amended by changing
5Section 11a-10 as follows:
 
6    (755 ILCS 5/11a-10)  (from Ch. 110 1/2, par. 11a-10)
7    Sec. 11a-10. Procedures preliminary to hearing.
8    (a) Upon the filing of a petition pursuant to Section
911a-8, the court shall set a date and place for hearing to take
10place within 30 days. The court shall appoint a guardian ad
11litem to report to the court concerning the respondent's best
12interests consistent with the provisions of this Section,
13except that the appointment of a guardian ad litem shall not be
14required when the court determines that such appointment is not
15necessary for the protection of the respondent or a reasonably
16informed decision on the petition. If the guardian ad litem is

 

 

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1not a licensed attorney, he or she shall be qualified, by
2training or experience, to work with or advocate for the
3developmentally disabled, mentally ill, physically disabled,
4the elderly, or persons disabled because of mental
5deterioration, depending on the type of disability that is
6alleged in the petition. The court may allow the guardian ad
7litem reasonable compensation. The guardian ad litem may
8consult with a person who by training or experience is
9qualified to work with persons with a developmental disability,
10persons with mental illness, or physically disabled persons, or
11persons disabled because of mental deterioration, depending on
12the type of disability that is alleged. The guardian ad litem
13shall personally observe the respondent prior to the hearing
14and shall inform him orally and in writing of the contents of
15the petition and of his rights under Section 11a-11. The
16guardian ad litem shall also attempt to elicit the respondent's
17position concerning the adjudication of disability, the
18proposed guardian, a proposed change in residential placement,
19changes in care that might result from the guardianship, and
20other areas of inquiry deemed appropriate by the court.
21Notwithstanding any provision in the Mental Health and
22Developmental Disabilities Confidentiality Act or any other
23law, a guardian ad litem shall have the right to inspect and
24copy any medical or mental health record of the respondent
25which the guardian ad litem deems necessary, provided that the
26information so disclosed shall not be utilized for any other

 

 

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1purpose nor be redisclosed except in connection with the
2proceedings. At or before the hearing, the guardian ad litem
3shall file a written report detailing his or her observations
4of the respondent, the responses of the respondent to any of
5the inquires detailed in this Section, the opinion of the
6guardian ad litem or other professionals with whom the guardian
7ad litem consulted concerning the appropriateness of
8guardianship, and any other material issue discovered by the
9guardian ad litem. The guardian ad litem shall appear at the
10hearing and testify as to any issues presented in his or her
11report.
12    (b) The court (1) may appoint counsel for the respondent,
13if the court finds that the interests of the respondent will be
14best served by the appointment, and (2) shall appoint counsel
15upon respondent's request or if the respondent takes a position
16adverse to that of the guardian ad litem. The respondent shall
17be permitted to obtain the appointment of counsel either at the
18hearing or by any written or oral request communicated to the
19court prior to the hearing. The summons shall inform the
20respondent of this right to obtain appointed counsel. The court
21may allow counsel for the respondent reasonable compensation.
22    (c) If the respondent is unable to pay the fee of the
23guardian ad litem or appointed counsel, or both, the court may
24enter an order for the petitioner to pay all such fees or such
25amounts as the respondent or the respondent's estate may be
26unable to pay. However, in cases where the Office of State

 

 

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1Guardian is the petitioner, consistent with Section 30 of the
2Guardianship and Advocacy Act, where the public guardian is the
3petitioner, consistent with Section 13-5 of the Probate Act of
41975, where an elder abuse provider agency is the petitioner,
5pursuant to Section 9 of the Elder Abuse and Neglect Act, or
6where the Department of Human Services Office of Inspector
7General is the petitioner, consistent with Section 45 of the
8Abuse of Adults with Disabilities Intervention Act, no guardian
9ad litem or legal fees shall be assessed against the Office of
10State Guardian, the public guardian, the elder abuse provider
11agency, or the Department of Human Services Office of Inspector
12General.
13    (d) The hearing may be held at such convenient place as the
14court directs, including at a facility in which the respondent
15resides.
16    (e) Unless he is the petitioner, the respondent shall be
17personally served with a copy of the petition and a summons not
18less than 14 days before the hearing. The summons shall be
19printed in large, bold type and shall include the following
20notice:
21
NOTICE OF RIGHTS OF RESPONDENT
22    You have been named as a respondent in a guardianship
23petition asking that you be declared a disabled person. If the
24court grants the petition, a guardian will be appointed for
25you. A copy of the guardianship petition is attached for your
26convenience.

 

 

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1The date and time of the hearing are:
2The place where the hearing will occur is:
3The Judge's name and phone number is:
4    If a guardian is appointed for you, the guardian may be
5given the right to make all important personal decisions for
6you, such as where you may live, what medical treatment you may
7receive, what places you may visit, and who may visit you. A
8guardian may also be given the right to control and manage your
9money and other property, including your home, if you own one.
10You may lose the right to make these decisions for yourself.
11    You have the following legal rights:
12        (1) You have the right to be present at the court
13    hearing.
14        (2) You have the right to be represented by a lawyer,
15    either one that you retain, or one appointed by the Judge.
16        (3) You have the right to ask for a jury of six persons
17    to hear your case.
18        (4) You have the right to present evidence to the court
19    and to confront and cross-examine witnesses.
20        (5) You have the right to ask the Judge to appoint an
21    independent expert to examine you and give an opinion about
22    your need for a guardian.
23        (6) You have the right to ask that the court hearing be
24    closed to the public.
25        (7) You have the right to tell the court whom you
26    prefer to have for your guardian.

 

 

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1    You do not have to attend the court hearing if you do not
2want to be there. If you do not attend, the Judge may appoint a
3guardian if the Judge finds that a guardian would be of benefit
4to you. The hearing will not be postponed or canceled if you do
5not attend.
6    IT IS VERY IMPORTANT THAT YOU ATTEND THE HEARING IF YOU DO
7NOT WANT A GUARDIAN OR IF YOU WANT SOMEONE OTHER THAN THE
8PERSON NAMED IN THE GUARDIANSHIP PETITION TO BE YOUR GUARDIAN.
9IF YOU DO NOT WANT A GUARDIAN OF IF YOU HAVE ANY OTHER
10PROBLEMS, YOU SHOULD CONTACT AN ATTORNEY OR COME TO COURT AND
11TELL THE JUDGE.
12    Service of summons and the petition may be made by a
13private person 18 years of age or over who is not a party to the
14action.
15    (f) Notice of the time and place of the hearing shall be
16given by the petitioner by mail or in person to those persons,
17including the proposed guardian, whose names and addresses
18appear in the petition and who do not waive notice, not less
19than 14 days before the hearing.
20(Source: P.A. 96-1052, eff. 7-14-10; 97-375, eff. 8-15-11.)".