State of Illinois
90th General Assembly
Legislation

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[ Engrossed ][ Enrolled ][ Senate Amendment 001 ]

90_HB1252

      755 ILCS 5/11a-4          from Ch. 110 1/2, par. 11a-4
      755 ILCS 5/11a-14.1       from Ch. 110 1/2, par. 11a-14.1
      755 ILCS 5/11a-17         from Ch. 110 1/2, par. 11a-17
          Amends the Guardians for Disabled Adults Article  of  the
      Probate  Act  of 1975. Provides that a temporary guardian may
      be appointed for a disabled adult pending the completion of a
      citation  hearing  for  the  removal  of  a   representative.
      Exempts  Public  Guardians  and  the office of State Guardian
      from provisions prohibiting a guardian from placing a ward in
      a  residential  facility  without  court  order.  Sets  forth
      standards for residential placement  decisions  for  a  ward.
      Provides  that  any  decision  by  the  guardian  to forgo or
      withdraw life-sustaining treatment  that  is  not  authorized
      under  the  Health  Care  Surrogate Act shall require a court
      order, unless the guardian is also a health  care  agent  for
      the  ward  under  a  valid power of attorney for health care.
      Sets forth standards for lawful decision-making by a guardian
      on  behalf  of  a  ward  without  court  review.    Effective
      immediately.
                                                    LRB9000014SMdvB
                                              LRB9000014SMdvB
 1        AN  ACT  to  amend  the  Probate  Act of 1975 by changing
 2    Sections 11a-4, 11a-14.1, and 11a-17.
 3        Be it enacted by the People of  the  State  of  Illinois,
 4    represented in the General Assembly:
 5        Section  5.   The  Probate  Act  of  1975  is  amended by
 6    changing Sections 11a-4, 11a-14.1, and 11a-17 as follows:
 7        (755 ILCS 5/11a-4) (from Ch. 110 1/2, par. 11a-4)
 8        Sec.  11a-4.   Temporary   guardian.)    Prior   to   the
 9    appointment  of  a guardian under this Article, or pending an
10    appeal  in  relation  to  the  appointment,  or  pending  the
11    completion of  a  citation  proceeding  brought  pursuant  to
12    Section  23-3  of this Act, the court may appoint a temporary
13    guardian upon a showing of the  necessity  therefor  for  the
14    immediate  welfare  and  protection  of  the alleged disabled
15    person or his estate on  such  notice  and  subject  to  such
16    conditions  as  the  court may prescribe.  In determining the
17    necessity for temporary guardianship, the  immediate  welfare
18    and  protection of the alleged disabled person and his or her
19    estate shall be of paramount concern, and  the  interests  of
20    the  petitioner,  any care provider, or any other party shall
21    not outweigh the interests of the  alleged  disabled  person.
22    The  temporary  guardian  shall  have  all  of the powers and
23    duties of a guardian of the person or of the estate which are
24    specifically enumerated by court order. The court order shall
25    state  the  actual  harm  identified  by   the   court   that
26    necessitates    temporary    guardianship.    The   temporary
27    guardianship  shall  expire  within   60   days   after   the
28    appointment  or  whenever  a guardian is regularly appointed,
29    whichever occurs first.  Except pending  the  disposition  on
30    appeal  of  an adjudication of disability, no extension shall
31    be granted. However, the ward shall have the right  any  time
                            -2-               LRB9000014SMdvB
 1    after  the  appointment  of  a  temporary guardian is made to
 2    petition the court to revoke the appointment of the temporary
 3    guardian.
 4    (Source: P.A. 89-396, eff. 8-20-95.)
 5        (755 ILCS 5/11a-14.1) (from Ch. 110 1/2, par. 11a-14.1)
 6        Sec.  11a-14.1.   Residential  placement.)   No  guardian
 7    appointed under  this  Article,  except  for  duly  appointed
 8    Public Guardians and the Office of State Guardian, shall have
 9    the power, unless specified by court order, to place his ward
10    in  a  residential  facility.   The  guardianship  order  may
11    specify  the  conditions  on which the guardian may admit the
12    ward to a residential facility without further  court  order.
13    In making residential placement decisions, the guardian shall
14    make decisions in conformity with the preferences of the ward
15    unless  the guardian is reasonably certain that the decisions
16    will result in substantial harm to the ward or to the  ward's
17    estate.   When   the   preferences  of  the  ward  cannot  be
18    ascertained or where they will result in substantial harm  to
19    the  ward  or  to  the ward's estate, the guardian shall make
20    decisions with respect to the ward's placement which  are  in
21    the best interests of the ward. The guardian shall not remove
22    the  ward  from  his  or  her  home or separate the ward from
23    family and  friends  unless  such  removal  is  necessary  to
24    prevent substantial harm to the ward or to the ward's estate.
25    The   guardian   shall   have   a  duty  to  investigate  the
26    availability  of  reasonable  residential  alternatives.  The
27    guardian shall monitor  the  placement  of  the  ward  on  an
28    on-going  basis  to ensure its continued appropriateness, and
29    shall pursue appropriate alternatives as needed.
30    (Source: P.A. 80-1415.)
31        (755 ILCS 5/11a-17) (from Ch. 110 1/2, par. 11a-17)
32        Sec. 11a-17.  Duties of personal guardian.
                            -3-               LRB9000014SMdvB
 1        (a)  To the extent ordered by the  court  and  under  the
 2    direction of the court, the guardian of the person shall have
 3    custody  of the ward and the ward's minor and adult dependent
 4    children; shall procure for them and shall make provision for
 5    their  support,  care,   comfort,   health,   education   and
 6    maintenance,  and  professional  services as are appropriate,
 7    but the ward's spouse may not be deprived of the custody  and
 8    education  of  the ward's minor and adult dependent children,
 9    without the consent of the spouse,  unless  the  court  finds
10    that  the  spouse  is  not a fit and competent person to have
11    that custody and education. The  guardian  shall  assist  the
12    ward   in   the  development  of  maximum  self-reliance  and
13    independence. The guardian of the  person  may  petition  the
14    court  for  an  order directing the guardian of the estate to
15    pay an amount periodically for the provision of the  services
16    specified  by  the  court  order.   If  the  ward's estate is
17    insufficient to provide for education and the guardian of the
18    ward's person fails to provide education, the court may award
19    the custody of the ward to some other person for the  purpose
20    of  providing education.  If a person makes a settlement upon
21    or provision for the support or  education  of  a  ward,  the
22    court may make an order for the visitation of the ward by the
23    person  making the settlement or provision as the court deems
24    proper.
25        (b)  If the court directs, the  guardian  of  the  person
26    shall  file  with  the  court  at  intervals indicated by the
27    court, a report that shall state  briefly:  (1)  the  current
28    mental,  physical,  and  social condition of the ward and the
29    ward's minor and adult dependent children; (2) their  present
30    living  arrangement,  and  a  description  and the address of
31    every residence where they lived during the reporting  period
32    and  the  length  of stay at each place; (3) a summary of the
33    medical,  educational,  vocational,  and  other  professional
34    services given to them; (4) a resume of the guardian's visits
                            -4-               LRB9000014SMdvB
 1    with and activities on behalf of  the  ward  and  the  ward's
 2    minor  and  adult dependent children; (5) a recommendation as
 3    to  the  need  for  continued  guardianship;  (6)  any  other
 4    information requested by the court or useful in  the  opinion
 5    of  the  guardian.  The  Office  of  the State Guardian shall
 6    assist the guardian in filing the report  when  requested  by
 7    the  guardian.   The  court  may take such action as it deems
 8    appropriate pursuant to the report.
 9        (c)  Absent court order pursuant to the Illinois Power of
10    Attorney Act directing a guardian to exercise powers  of  the
11    principal  under  an  agency  that  survives  disability, the
12    guardian has no power, duty, or liability with respect to any
13    personal or health care matters covered by the  agency.  This
14    subsection (c) applies to all agencies, whenever and wherever
15    executed.
16        (d)  A  guardian  acting  as  a  surrogate decision maker
17    under the Health Care Surrogate Act shall have all the rights
18    of a surrogate under that Act without court  order  including
19    the  right  to  make  medical  treatment  decisions  such  as
20    decisions to forgo or withdraw life-sustaining treatment. Any
21    decisions    by   the   guardian   to   forgo   or   withdraw
22    life-sustaining treatment that are not authorized  under  the
23    Health  Care  Surrogate  Act  shall  require  a  court order.
24    Nothing in this Section shall prevent an agent acting under a
25    power of attorney for health care from exercising his or  her
26    authority  under  the  Illinois Power of Attorney Act without
27    further court order, unless a court has acted  under  Section
28    2-10 of the Illinois Power of Attorney Act.  If a guardian is
29    also  a health care agent for the ward under a valid power of
30    attorney for health care, the guardian acting  as  agent  may
31    execute  his  or her authority under that act without further
32    court order.
33        (e)  Decisions made by a guardian on behalf of a ward are
34    lawful, without court review, if the decisions  are  made  in
                            -5-               LRB9000014SMdvB
 1    accordance  with the following standards for decision making.
 2    Decisions made by a guardian on behalf of a ward may be  made
 3    by  conforming  as  closely  as possible to what the ward, if
 4    competent,  would   have   done   or   intended   under   the
 5    circumstances,  taking  into  account evidence that includes,
 6    but is not limited to, the  ward's  personal,  philosophical,
 7    religious  and  moral beliefs, and ethical values relative to
 8    the decision to be made by the guardian. Where possible,  the
 9    guardian  shall  determine  how  the  ward  would have made a
10    decision   based   on   the   ward's   previously   expressed
11    preferences,  and  make  decisions  in  accordance  with  the
12    preferences of the ward. If the ward's wishes are unknown and
13    remain unknown after reasonable efforts to discern them,  the
14    decision  shall  be  made  on  the  basis  of the ward's best
15    interests as determined by the guardian. In  determining  the
16    ward's  best  interests,  the guardian shall weigh the reason
17    for and  nature  of  the  proposed  action,  the  benefit  or
18    necessity  of  the  action,  the  possible  risks  and  other
19    consequences  of  the  proposed  action,  and  any  available
20    alternatives  and their risks, consequences and benefits, and
21    shall take into account any other information, including  the
22    views  of  family and friends, that the guardian believes the
23    ward would have considered if able  to  act  for  herself  or
24    himself.
25    (Source: P.A. 87-749.)
26        Section  99.  Effective date.  This Act takes effect upon
27    becoming law.

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