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Full Text of SB1319  100th General Assembly

SB1319sam001 100TH GENERAL ASSEMBLY

Sen. Tim Bivins

Filed: 3/10/2017

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 1319

2    AMENDMENT NO. ______. Amend Senate Bill 1319 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Probate Act of 1975 is amended by adding
5Sections 11a-10 and 11a-11.5 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 persons
3with developmental disabilities, the mentally ill, persons
4with physical disabilities, the elderly, or persons with a
5disability due to mental deterioration, depending on the type
6of disability that is alleged in the petition. The court may
7allow the guardian ad litem reasonable compensation. The
8guardian ad litem may consult with a person who by training or
9experience is qualified to work with persons with a
10developmental disability, persons with mental illness, persons
11with physical disabilities, or persons with a disability due to
12mental deterioration, depending on the type of disability that
13is alleged. The guardian ad litem shall personally observe the
14respondent prior to the hearing and shall inform him orally and
15in writing of the contents of the petition and of his rights
16under Section 11a-11. The guardian ad litem shall also attempt
17to elicit the respondent's position concerning the
18adjudication of disability, the proposed guardian, a proposed
19change in residential placement, changes in care that might
20result from the guardianship, and other areas of inquiry deemed
21appropriate by the court. Notwithstanding any provision in the
22Mental Health and Developmental Disabilities Confidentiality
23Act or any other law, a guardian ad litem shall have the right
24to inspect and copy any medical or mental health record of the
25respondent which the guardian ad litem deems necessary,
26provided that the information so disclosed shall not be

 

 

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1utilized for any other purpose nor be redisclosed except in
2connection with the proceedings. At or before the hearing, the
3guardian ad litem shall file a written report detailing his or
4her observations of the respondent, the responses of the
5respondent to any of the inquiries detailed in this Section,
6the opinion of the guardian ad litem or other professionals
7with whom the guardian ad litem consulted concerning the
8appropriateness of guardianship, and any other material issue
9discovered by the guardian ad litem. The guardian ad litem
10shall appear at the hearing and testify as to any issues
11presented in his or her report.
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 this Act, where an
4adult protective services agency is the petitioner, pursuant to
5Section 9 of the Adult Protective Services Act, or where the
6Department of Children and Family Services is the petitioner
7under subparagraph (d) of subsection (1) of Section 2-27 of the
8Juvenile Court Act of 1987, no guardian ad litem or legal fees
9shall be assessed against the Office of State Guardian, the
10public guardian, the adult protective services agency, or the
11Department of Children and Family Services.
12    (d) The hearing may be held at such convenient place as the
13court directs, including at a facility in which the respondent
14resides.
15    (e) Unless he is the petitioner, the respondent shall be
16personally served with a copy of the petition and a summons not
17less than 14 days before the hearing. The summons shall be
18printed in large, bold type and shall include the following
19notice:
20
NOTICE OF RIGHTS OF RESPONDENT
21    You have been named as a respondent in a guardianship
22petition asking that you be declared a person with a
23disability. If the court grants the petition, a guardian will
24be appointed for you. A copy of the guardianship petition is
25attached for your convenience.
26The date and time of the hearing are:

 

 

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1The place where the hearing will occur is:
2The Judge's name and phone number is:
3    If a guardian is appointed for you, the guardian may be
4given the right to make all important personal decisions for
5you, such as where you may live, what medical treatment you may
6receive, what places you may visit, and who may visit you. A
7guardian may also be given the right to control and manage your
8money and other property, including your home, if you own one.
9You may lose the right to make these decisions for yourself.
10    You have the following legal rights:
11        (1) You have the right to be present at the court
12    hearing.
13        (2) You have the right to be represented by a lawyer,
14    either one that you retain, or one appointed by the Judge.
15        (3) You have the right to ask for a jury of six persons
16    to hear your case.
17        (4) You have the right to present evidence to the court
18    and to confront and cross-examine witnesses.
19        (5) You have the right to ask the Judge to appoint an
20    independent expert to examine you and give an opinion about
21    your need for a guardian.
22        (6) You have the right to ask that the court hearing be
23    closed to the public.
24        (7) You have the right to tell the court whom you
25    prefer to have for your guardian.
26    You do not have to attend the court hearing if you do not

 

 

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1want to be there. If you do not attend, the Judge may appoint a
2guardian if the Judge finds that a guardian would be of benefit
3to you. The hearing will not be postponed or canceled if you do
4not attend. If you are unable to attend the hearing in person
5or will suffer harm if required to attend, the hearing may be
6held at such convenient place as the court directs or the use
7of video conferencing equipment may be permitted to ensure your
8participation.
9    IT IS VERY IMPORTANT THAT YOU ATTEND THE HEARING IF YOU DO
10NOT WANT A GUARDIAN OR IF YOU WANT SOMEONE OTHER THAN THE
11PERSON NAMED IN THE GUARDIANSHIP PETITION TO BE YOUR GUARDIAN.
12IF YOU DO NOT WANT A GUARDIAN OR OF IF YOU HAVE ANY OTHER
13PROBLEMS, YOU SHOULD CONTACT AN ATTORNEY OR COME TO COURT AND
14TELL THE JUDGE.
15    Service of summons and the petition may be made by a
16private person 18 years of age or over who is not a party to the
17action.
18    (f) Notice of the time and place of the hearing shall be
19given by the petitioner by mail or in person to those persons,
20including the proposed guardian, whose names and addresses
21appear in the petition and who do not waive notice, not less
22than 14 days before the hearing.
23(Source: P.A. 98-49, eff. 7-1-13; 98-89, eff. 7-15-13; 98-756,
24eff. 7-16-14; 99-143, eff. 7-27-15; 99-642, eff. 7-28-16;
25revised 10-27-16.)
 

 

 

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1    (755 ILCS 5/11a-11.5 new)
2    Sec. 11a-11.5. Video conferencing. The Illinois Supreme
3Court or any circuit court of this State may adopt rules
4permitting the use of video conferencing equipment in any
5hearing under Section 11a-11 upon a showing that all other
6means of accommodating in-person testimony have been exhausted
7or that a participant will suffer harm if required to attend in
8person. If the parties, including the respondent, and their
9attorneys agree, one or multiple participants may testify by
10video conferencing equipment from any location in the absence
11of a court rule specifically prohibiting that testimony and
12notwithstanding any provisions of this Act to the contrary.".