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Full Text of SB3592  97th General Assembly

SB3592enr 97TH GENERAL ASSEMBLY



 


 
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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 Guardianship and Advocacy Act is amended by
5changing Section 31 as follows:
 
6    (20 ILCS 3955/31)  (from Ch. 91 1/2, par. 731)
7    Sec. 31. Appointment; availability of State Guardian;
8available private guardian. The State Guardian shall not be
9appointed if another suitable person is available and willing
10to accept the guardianship appointment. In all cases where a
11court appoints the State Guardian, the court shall indicate in
12the order appointing the guardian as a finding of fact that no
13other suitable and willing person could be found to accept the
14guardianship appointment. On and after the effective date of
15this amendatory Act of the 97th General Assembly, the court
16shall also indicate in the order, as a finding of fact, the
17reasons that the State Guardian appointment, rather than the
18appointment of another interested party, is required. This
19requirement shall be waived where the Office of State Guardian
20petitions for its own appointment as guardian.
21(Source: P.A. 89-396, eff. 8-20-95.)
 
22    Section 10. The Clerks of Courts Act is amended by adding

 

 

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1Section 27.3f as follows:
 
2    (705 ILCS 105/27.3f new)
3    Sec. 27.3f. Guardianship and advocacy operations fee.
4    (a) As used in this Section, "guardianship and advocacy"
5means the guardianship and advocacy services provided by the
6Guardianship and Advocacy Commission and defined in the
7Guardianship and Advocacy Act. Viable public guardianship and
8advocacy programs, including the public guardianship programs
9created and supervised in probate proceedings in the Illinois
10courts, are essential to the administration of justice and
11ensure that incapacitated persons and their estates are
12protected. To defray the expense of maintaining and operating
13the divisions and programs of the Guardianship and Advocacy
14Commission and to support viable guardianship and advocacy
15programs throughout Illinois, each circuit court clerk shall
16charge and collect a fee on all matters filed in probate cases
17in accordance with this Section, but no fees shall be assessed
18against the State Guardian, any State agency under the
19jurisdiction of the Governor, any public guardian, or any
20State's Attorney.
21    (b) No fee specified in this Section shall be imposed in
22any minor guardianship established under Article XI of the
23Probate Act of 1975, or against an indigent person. An indigent
24person shall include any person who meets one or more of the
25following criteria:

 

 

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1        (1) He or she is receiving assistance under one or more
2    of the following public benefits programs: Supplemental
3    Security Income (SSI), Aid to the Aged, Blind, and Disabled
4    (AABD), Temporary Assistance for Needy Families (TANF),
5    Supplemental Nutrition Assistance Program (SNAP) (formerly
6    Food Stamps), General Assistance, State Transitional
7    Assistance, or State Children and Family Assistance.
8        (2) His or her available income is 125% or less of the
9    current poverty level as established by the United States
10    Department of Health and Human Services, unless the
11    applicant's assets that are not exempt under Part 9 or 10
12    of Article XII of the Code of Civil Procedure are of a
13    nature and value that the court determines that the
14    applicant is able to pay the fees, costs, and charges.
15        (3) He or she is, in the discretion of the court,
16    unable to proceed in an action without payment of fees,
17    costs, and charges and whose payment of those fees, costs,
18    and charges would result in substantial hardship to the
19    person or his or her family.
20        (4) He or she is an indigent person pursuant to Section
21    5-105.5 of the Code of Civil Procedure, providing that an
22    "indigent person" means a person whose income is 125% or
23    less of the current official federal poverty guidelines or
24    who is otherwise eligible to receive civil legal services
25    under the Legal Services Corporation Act of 1974.
26    (c) The clerk is entitled to receive the fee specified in

 

 

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1this Section, which shall be paid in advance, and managed by
2the clerk as set out in paragraph (2), except that, for good
3cause shown, the court may suspend, reduce, or release the
4costs payable under this Section:
5        (1) For administration of the estate of a decedent
6    (whether testate or intestate) or of a missing person, a
7    fee of $100.
8        (2) The guardianship and advocacy operations fee, as
9    outlined in this Section, shall be in addition to all other
10    fees and charges and assessable as costs. Five percent of
11    the fee shall be retained by the clerk for deposit into the
12    Circuit Court Clerk Operation and Administrative Fund to
13    defray costs of collection and 95% of the fee shall be
14    disbursed within 60 days after receipt by the circuit clerk
15    to the State Treasurer for deposit by the State Treasurer
16    into the Guardianship and Advocacy Fund.
 
17    Section 15. The Probate Act of 1975 is amended by changing
18Sections 11a-12 and 11a-20 as follows:
 
19    (755 ILCS 5/11a-12)  (from Ch. 110 1/2, par. 11a-12)
20    Sec. 11a-12. Order of appointment.)
21    (a) If basis for the appointment of a guardian as specified
22in Section 11a-3 is not found, the court shall dismiss the
23petition.
24    (b) If the respondent is adjudged to be disabled and to

 

 

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1lack some but not all of the be totally without capacity as
2specified in Section 11a-3, and if the court finds that limited
3guardianship is necessary for the protection of will not
4provide sufficient protection for the disabled person, his or
5her estate, or both, the court shall appoint a limited plenary
6guardian for the respondent's person or estate or both. The
7court shall enter a written order stating the factual basis for
8its findings and specifying the duties and powers of the
9guardian and the legal disabilities to which the respondent is
10subject.
11    (c) If the respondent is adjudged to be disabled and to be
12totally without lack some but not all of the capacity as
13specified in Section 11a-3, and if the court finds that limited
14guardianship will not provide sufficient is necessary for the
15protection for of the disabled person, his or her estate, or
16both, the court shall appoint a plenary guardian for limited
17guardian of the respondent's person or estate or both. The
18court shall enter a written order stating the factual basis for
19its findings and specifying the duties and powers of the
20guardian and the legal disabilities to which the respondent is
21subject.
22    (d) The selection of the guardian shall be in the
23discretion of the court, which shall give due consideration to
24the preference of the disabled person as to a guardian, as well
25as the qualifications of the proposed guardian, in making its
26appointment.

 

 

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1(Source: P.A. 89-396, eff. 8-20-95.)
 
2    (755 ILCS 5/11a-20)  (from Ch. 110 1/2, par. 11a-20)
3    Sec. 11a-20. Termination of adjudication of disability -
4Revocation of letters - modification.) (a) Except as provided
5in subsection (b-5), upon Upon the filing of a petition by or
6on behalf of a disabled person or on its own motion, the court
7may terminate the adjudication of disability of the ward,
8revoke the letters of guardianship of the estate or person, or
9both, or modify the duties of the guardian if the ward's
10capacity to perform the tasks necessary for the care of his
11person or the management of his estate has been demonstrated by
12clear and convincing evidence. A report or testimony by a
13licensed physician is not a prerequisite for termination,
14revocation or modification of a guardianship order under this
15subsection (a).
16    (b) Except as provided in subsection (b-5), a A request by
17the ward or any other person on the ward's behalf, under this
18Section may be communicated to the court or judge by any means,
19including but not limited to informal letter, telephone call or
20visit. Upon receipt of a request from the ward or another
21person, the court may appoint a guardian ad litem to
22investigate and report to the court concerning the allegations
23made in conjunction with said request, and if the ward wishes
24to terminate, revoke, or modify the guardianship order, to
25prepare the ward's petition and to render such other services

 

 

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1as the court directs.
2    (b-5) Upon the filing of a verified petition by the
3guardian of the disabled person or the disabled person, the
4court may terminate the adjudication of disability of the ward,
5revoke the letters of guardianship of the estate or person, or
6both, or modify the duties of the guardian if: (i) a report
7completed in accordance with subsection (a) of Section 11a-9
8states that the disabled person is no longer in need of
9guardianship or that the type and scope of guardianship should
10be modified; (ii) the disabled person no longer wishes to be
11under guardianship or desires that the type and scope of
12guardianship be modified; and (iii) the guardian of the
13disabled person states that it is in the best interest of the
14disabled person to terminate the adjudication of disability of
15the ward, revoke the letters of guardianship of the estate or
16person, or both, or modify the duties of the guardian, and
17provides the basis thereof. In a proceeding brought pursuant to
18this subsection (b-5), the court may terminate the adjudication
19of disability of the ward, revoke the letters of guardianship
20of the estate or person, or both, or modify the duties of the
21guardian, unless it has been demonstrated by clear and
22convincing evidence that the ward is incapable of performing
23the tasks necessary for the care of his or her person or the
24management of his or her estate.
25    (c) Notice of the hearing on a petition under this Section,
26together with a copy of the petition, shall be given to the

 

 

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1ward, unless he is the petitioner, and to each and every
2guardian to whom letters of guardianship have been issued and
3not revoked, not less than 14 days before the hearing.
4(Source: P.A. 86-605.)