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Full Text of SB3592  97th General Assembly

SB3592ham002 97TH GENERAL ASSEMBLY

Rep. Sara Feigenholtz

Filed: 5/28/2012

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 3592

2    AMENDMENT NO. ______. Amend Senate Bill 3592, AS AMENDED,
3by replacing everything after the enacting clause with the
4following:
 
5    "Section 5. The Guardianship and Advocacy Act is amended by
6changing Section 31 as follows:
 
7    (20 ILCS 3955/31)  (from Ch. 91 1/2, par. 731)
8    Sec. 31. Appointment; availability of State Guardian;
9available private guardian. The State Guardian shall not be
10appointed if another suitable person is available and willing
11to accept the guardianship appointment. In all cases where a
12court appoints the State Guardian, the court shall indicate in
13the order appointing the guardian as a finding of fact that no
14other suitable and willing person could be found to accept the
15guardianship appointment. On and after the effective date of
16this amendatory Act of the 97th General Assembly, the court

 

 

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

 

 

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

 

 

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

 

 

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1    results in the appointment of the Office of State Guardian,
2    the fee shall be $250, plus the fees specified in paragraph
3    (3).
4        (3) In addition to the fees payable under paragraph (1)
5    or (2) of this subsection (c), the following fees are
6    payable:
7            (A) For each account (other than one final account)
8        filed in the estate of a decedent, or ward, the fee
9        shall be $25.
10            (B) For filing a claim in an estate when the amount
11        claimed is $150 or more but less than $500, the fee
12        shall be $50; when the amount claimed is $500 or more
13        but less than $10,000, the fee shall be $100; when the
14        amount claimed is $10,000 or more, the fee shall be
15        $150; provided that the court in allowing a claim may
16        add to the amount allowed the filing fee paid by the
17        claimant.
18            (C) For filing in an estate a claim, petition, or
19        supplemental proceeding based upon an action seeking
20        equitable relief including the construction or contest
21        of a will, enforcement of a contract to make a will,
22        and proceedings involving a testamentary trust or the
23        appointment of a testamentary trustee, the fee shall be
24        $60.
25            (D) For filing in an estate (i) the appearance of
26        any person for the purpose of consent or (ii) the

 

 

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1        appearance of an executor, administrator,
2        administrator to collect, guardian, guardian ad litem,
3        or special administrator, no fee.
4            (E) Except as provided in subparagraph (D) of this
5        paragraph (3), for filing the appearance of any person
6        or persons, the fee shall be $30.
7            (F) For each jury demand, the fee shall be $90.
8            (G) For disposition of the collection of a judgment
9        or settlement of an action or claim for wrongful death
10        of a decedent or of any cause of action of a ward, when
11        there is no other administration of the estate, the fee
12        shall be $50, less any amount paid under subparagraph
13        (B) of paragraph (1) or subparagraph (B) of this
14        paragraph (3), except that if the amount involved does
15        not exceed $5,000, the fee, including any amount paid
16        under subparagraph (B) of paragraph (1) or
17        subparagraph (B) of this paragraph (3), shall be $20.
18        (4) The guardianship and advocacy operations fees, as
19    outlined in this Section, shall be in addition to all other
20    fees and charges and assessable as costs. Twenty percent of
21    the fee shall be retained by the clerk for deposit into the
22    Circuit Court Clerk Operation and Administrative Fund to
23    defray costs of collection and 80% of the fee shall be
24    disbursed within 60 days after receipt by the circuit clerk
25    to the State Treasurer for deposit by the State Treasurer
26    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

 

 

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

 

 

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

 

 

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