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Full Text of SB3592  97th General Assembly

SB3592ham001 97TH GENERAL ASSEMBLY

Rep. Sara Feigenholtz

Filed: 5/24/2012

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 3592

2    AMENDMENT NO. ______. Amend Senate Bill 3592 by replacing
3everything after the enacting clause with the following:
 
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

 

 

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1reasons that the State Guardian appointment, rather than the
2appointment of another interested party, is required. This
3requirement shall be waived where the Office of State Guardian
4petitions for its own appointment as guardian.
5(Source: P.A. 89-396, eff. 8-20-95.)
 
6    Section 10. The Clerks of Courts Act is amended by adding
7Section 27.3f as follows:
 
8    (705 ILCS 105/27.3f new)
9    Sec. 27.3f. Guardianship and advocacy operations fee.
10    (a) As used in this Section, "guardianship and advocacy"
11means the guardianship and advocacy services provided by the
12Guardianship and Advocacy Commission and defined in the
13Guardianship and Advocacy Act. Viable public guardianship and
14advocacy programs, including the public guardianship programs
15created and supervised in probate proceedings in the Illinois
16courts, are essential to the administration of justice and
17ensure that incapacitated persons and their estates are
18protected. To defray the expense of maintaining and operating
19the divisions and programs of the Guardianship and Advocacy
20Commission and to support viable guardianship and advocacy
21programs throughout Illinois, each circuit court clerk shall
22charge and collect a fee on all matters filed in probate cases
23in accordance with this Section, but no fees shall be assessed
24against the State Guardian, any State agency under the

 

 

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1jurisdiction of the Governor, any public guardian, or any
2State's Attorney.
3    (b) No fees specified in this Section shall be imposed in
4any minor guardianship established under Article XI of the
5Probate Act of 1975, or against an indigent person. An indigent
6person shall include any person who meets one or more of the
7following criteria:
8        (1) He or she is receiving assistance under one or more
9    of the following public benefits programs: Supplemental
10    Security Income (SSI), Aid to the Aged, Blind, and Disabled
11    (AABD), Temporary Assistance for Needy Families (TANF),
12    Supplemental Nutrition Assistance Program (SNAP) (formerly
13    Food Stamps), General Assistance, State Transitional
14    Assistance, or State Children and Family Assistance.
15        (2) His or her available income is 125% or less of the
16    current poverty level as established by the United States
17    Department of Health and Human Services, unless the
18    applicant's assets that are not exempt under Part 9 or 10
19    of Article XII of the Code of Civil Procedure are of a
20    nature and value that the court determines that the
21    applicant is able to pay the fees, costs, and charges.
22        (3) He or she is, in the discretion of the court,
23    unable to proceed in an action without payment of fees,
24    costs, and charges and whose payment of those fees, costs,
25    and charges would result in substantial hardship to the
26    person or his or her family.

 

 

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1        (4) He or she is an indigent person pursuant to Section
2    5-105.5 of the Code of Civil Procedure, providing that an
3    "indigent person" means a person whose income is 125% or
4    less of the current official federal poverty guidelines or
5    who is otherwise eligible to receive civil legal services
6    under the Legal Services Corporation Act of 1974.
7    (c) The clerk is entitled to receive the fees specified in
8this Section, which shall be paid in advance, and managed by
9the clerk as set out in paragraph (4), except that, for good
10cause shown, the court may suspend, reduce, or release the
11costs payable under this Section:
12        (1) For administration of the estate of a decedent
13    (whether testate or intestate) or of a missing person, a
14    fee of $50, plus the fees specified in paragraph (3),
15    except:
16            (A) When the value of the real and personal
17        property of a decedent (whether testate or intestate)
18        does not exceed $15,000, no fee shall be assessed.
19            (B) When (i) proof of heirship alone is made, (ii)
20        a domestic or foreign will is admitted to probate
21        without administration (including proof of heirship),
22        or (iii) letters of office are issued for a particular
23        purpose without administration of the estate, the fee
24        shall be $40.
25        (2) For administration of the estate of a ward that
26    results in the appointment of the Office of State Guardian,

 

 

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1    the fee shall be $250, plus the fees specified in paragraph
2    (3).
3        (3) In addition to the fees payable under paragraph (1)
4    or (2) of this subsection (c), the following fees are
5    payable:
6            (A) For each account (other than one final account)
7        filed in the estate of a decedent, or ward, the fee
8        shall be $25.
9            (B) For filing a claim in an estate when the amount
10        claimed is $150 or more but less than $500, the fee
11        shall be $100; when the amount claimed is $500 or more
12        but less than $10,000, the fee shall be $115; when the
13        amount claimed is $10,000 or more, the fee shall be
14        $135; provided that the court in allowing a claim may
15        add to the amount allowed the filing fee paid by the
16        claimant.
17            (C) For filing in an estate a claim, petition, or
18        supplemental proceeding based upon an action seeking
19        equitable relief including the construction or contest
20        of a will, enforcement of a contract to make a will,
21        and proceedings involving a testamentary trust or the
22        appointment of a testamentary trustee, the fee shall be
23        $60.
24            (D) For filing in an estate (i) the appearance of
25        any person for the purpose of consent or (ii) the
26        appearance of an executor, administrator,

 

 

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1        administrator to collect, guardian, guardian ad litem,
2        or special administrator, no fee.
3            (E) Except as provided in subparagraph (D) of this
4        paragraph (3), for filing the appearance of any person
5        or persons, the fee shall be $30.
6            (F) For each jury demand, the fee shall be $180.
7            (G) For disposition of the collection of a judgment
8        or settlement of an action or claim for wrongful death
9        of a decedent or of any cause of action of a ward, when
10        there is no other administration of the estate, the fee
11        shall be $50, less any amount paid under subparagraph
12        (B) of paragraph (1) or subparagraph (B) of this
13        paragraph (3), except that if the amount involved does
14        not exceed $5,000, the fee, including any amount paid
15        under subparagraph (B) of paragraph (1) or
16        subparagraph (B) of this paragraph (3), shall be $20.
17        (4) The guardianship and advocacy operations fees, as
18    outlined in this Section, shall be in addition to all other
19    fees and charges and assessable as costs and shall not be
20    subject to disbursement under Section 27.5 or 27.6 of this
21    Act. Twenty percent of the fee shall be retained by the
22    clerk to defray costs of collection and 80% of the fee
23    shall be disbursed within 60 days after receipt by the
24    circuit clerk to the State Treasurer for deposit by the
25    State Treasurer into the Guardianship and Advocacy Fund.
 

 

 

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1    Section 15. The Probate Act of 1975 is amended by changing
2Sections 11a-12 and 11a-20 as follows:
 
3    (755 ILCS 5/11a-12)  (from Ch. 110 1/2, par. 11a-12)
4    Sec. 11a-12. Order of appointment.)
5    (a) If basis for the appointment of a guardian as specified
6in Section 11a-3 is not found, the court shall dismiss the
7petition.
8    (b) If the respondent is adjudged to be disabled and to
9lack some but not all of the be totally without capacity as
10specified in Section 11a-3, and if the court finds that limited
11guardianship is necessary for the protection of will not
12provide sufficient protection for the disabled person, his or
13her estate, or both, the court shall appoint a limited plenary
14guardian for the respondent's person or estate or both. The
15court shall enter a written order stating the factual basis for
16its findings and specifying the duties and powers of the
17guardian and the legal disabilities to which the respondent is
18subject.
19    (c) If the respondent is adjudged to be disabled and to be
20totally without lack some but not all of the capacity as
21specified in Section 11a-3, and if the court finds that limited
22guardianship will not provide sufficient is necessary for the
23protection for of the disabled person, his or her estate, or
24both, the court shall appoint a plenary guardian for limited
25guardian of the respondent's person or estate or both. The

 

 

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1court shall enter a written order stating the factual basis for
2its findings and specifying the duties and powers of the
3guardian and the legal disabilities to which the respondent is
4subject.
5    (d) The selection of the guardian shall be in the
6discretion of the court, which shall give due consideration to
7the preference of the disabled person as to a guardian, as well
8as the qualifications of the proposed guardian, in making its
9appointment.
10(Source: P.A. 89-396, eff. 8-20-95.)
 
11    (755 ILCS 5/11a-20)  (from Ch. 110 1/2, par. 11a-20)
12    Sec. 11a-20. Termination of adjudication of disability -
13Revocation of letters - modification.) (a) Except as provided
14in subsection (b-5), upon Upon the filing of a petition by or
15on behalf of a disabled person or on its own motion, the court
16may terminate the adjudication of disability of the ward,
17revoke the letters of guardianship of the estate or person, or
18both, or modify the duties of the guardian if the ward's
19capacity to perform the tasks necessary for the care of his
20person or the management of his estate has been demonstrated by
21clear and convincing evidence. A report or testimony by a
22licensed physician is not a prerequisite for termination,
23revocation or modification of a guardianship order under this
24subsection (a).
25    (b) Except as provided in subsection (b-5), a A request by

 

 

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1the ward or any other person on the ward's behalf, under this
2Section may be communicated to the court or judge by any means,
3including but not limited to informal letter, telephone call or
4visit. Upon receipt of a request from the ward or another
5person, the court may appoint a guardian ad litem to
6investigate and report to the court concerning the allegations
7made in conjunction with said request, and if the ward wishes
8to terminate, revoke, or modify the guardianship order, to
9prepare the ward's petition and to render such other services
10as the court directs.
11    (b-5) Upon the filing of a verified petition by the
12guardian of the disabled person or the disabled person, the
13court may terminate the adjudication of disability of the ward,
14revoke the letters of guardianship of the estate or person, or
15both, or modify the duties of the guardian if: (i) a report
16completed in accordance with subsection (a) of Section 11a-9
17states that the disabled person is no longer in need of
18guardianship or that the type and scope of guardianship should
19be modified; (ii) the disabled person no longer wishes to be
20under guardianship or desires that the type and scope of
21guardianship be modified; and (iii) the guardian of the
22disabled person states that it is in the best interest of the
23disabled person to terminate the adjudication of disability of
24the ward, revoke the letters of guardianship of the estate or
25person, or both, or modify the duties of the guardian, and
26provides the basis thereof. In a proceeding brought pursuant to

 

 

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1this subsection (b-5), the court may terminate the adjudication
2of disability of the ward, revoke the letters of guardianship
3of the estate or person, or both, or modify the duties of the
4guardian, unless it has been demonstrated by clear and
5convincing evidence that the ward is incapable of performing
6the tasks necessary for the care of his or her person or the
7management of his or her estate.
8    (c) Notice of the hearing on a petition under this Section,
9together with a copy of the petition, shall be given to the
10ward, unless he is the petitioner, and to each and every
11guardian to whom letters of guardianship have been issued and
12not revoked, not less than 14 days before the hearing.
13(Source: P.A. 86-605.)".