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90_HB3578
755 ILCS 5/11-5.3
755 ILCS 5/11-5.4
755 ILCS 5/11-8.1
755 ILCS 5/11-13.1
Amends the "Minors" Article of the Probate Act.
Authorizes a legal private guardian of a minor to designate a
standby guardian of the minor or appoint a short-term
guardian of the minor if there is no surviving parent of the
minor.
LRB9010190DJcdA
LRB9010190DJcdA
1 AN ACT to amend the Probate Act of 1975 by changing
2 Sections 11-5.3, 11-5.4, 11-8.1, and 11-13.1.
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 11-5.3, 11-5.4, 11-8.1, and 11-13.1 as
7 follows:
8 (755 ILCS 5/11-5.3)
9 Sec. 11-5.3. Appointment of standby guardian.
10 (a) A parent, adoptive parent, or adjudicated parent,
11 whose parental rights have not been terminated, or the legal
12 private guardian of the person of a minor if there is no
13 surviving parent, may designate in any writing, including a
14 will, a person qualified to act under Section 11-3 to be
15 appointed as standby guardian of the person or estate, or
16 both, of an unmarried minor or of a child likely to be born.
17 A parent, adoptive parent, or adjudicated parent, whose
18 parental rights have not been terminated, or the legal
19 private guardian of the person of a minor if there is no
20 surviving parent, or a standby guardian of an unmarried minor
21 or of a child likely to be born may designate in any writing,
22 including a will, a person qualified to act under Section
23 11-3 to be appointed as successor standby guardian of the
24 minor's person or estate, or both. The designation must be
25 witnessed by 2 or more credible witnesses at least 18 years
26 of age, neither of whom is the person designated as the
27 standby guardian. The designation may be proved by any
28 competent evidence. If the designation is executed and
29 attested in the same manner as a will, it shall have prima
30 facie validity. The designation of a standby guardian or
31 successor standby guardian does not affect the rights of the
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1 other parent in the minor.
2 (b) Upon the filing of a petition for the appointment of
3 a standby guardian, the court may appoint a standby guardian
4 of the person or estate, or both, of a minor as the court
5 finds to be in the best interest of the minor.
6 (c) The court lacks jurisdiction to proceed on a
7 petition for the appointment of a standby guardian of a minor
8 if (i) the minor has a living parent, adoptive parent or
9 adjudicated parent, whose parental rights have not been
10 terminated, whose whereabouts are known, and who is willing
11 and able to make and carry out day-to-day child care
12 decisions concerning the minor, unless the parent or parents
13 consent to the appointment or, after receiving notice of the
14 hearing under Section 11-10.1, fail to object to the
15 appointment at the hearing on the petition or (ii) there is a
16 guardian for the minor appointed by a court of competent
17 jurisdiction, except that if there is no surviving parent and
18 a legal private guardian of the person of the minor has been
19 appointed, then the court has jurisdiction to proceed on the
20 petition for appointment of a standby guardian for the minor.
21 There shall be a rebuttable presumption that a parent of a
22 minor is willing and able to make and carry out day-to-day
23 child care decisions concerning the minor, but the
24 presumption may be rebutted by a preponderance of the
25 evidence.
26 (d) The standby guardian shall take and file an oath or
27 affirmation that the standby guardian will faithfully
28 discharge the duties of the office of standby guardian
29 according to law, and shall file in and have approved by the
30 court a bond binding the standby guardian so to do, but shall
31 not be required to file a bond until the standby guardian
32 assumes all duties as guardian of the minor under Section
33 11-13.1.
34 (e) The designation of a standby guardian may, but need
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1 not, be in the following form:
2 DESIGNATION OF STANDBY GUARDIAN
3 [IT IS IMPORTANT TO READ THE FOLLOWING INSTRUCTIONS:
4 A standby guardian is someone who has been appointed by
5 the court as the person who will act as guardian of the child
6 when the child's parents, or the legal private guardian of
7 the person of the child if there is no surviving parent, die
8 or are no longer willing or able to make and carry out
9 day-to-day child care decisions concerning the child. By
10 properly completing this form, a parent or the legal private
11 guardian of the person of the child if there is no surviving
12 parent, is naming the person that the parent or the legal
13 private guardian wants to be appointed as the standby
14 guardian of the child or children of the parent. Both parents
15 of a child may join together and co-sign this form. Signing
16 the form does not appoint the standby guardian; to be
17 appointed, a petition must be filed in and approved by the
18 court.]
19 1. Parent (or legal private guardian if there is no
20 surviving parent) and Children. I, (insert name of
21 designating parent or legal private guardian if there is
22 no surviving parent), currently residing at (insert
23 address of designating parent or legal private guardian),
24 am a parent (or, there being no surviving parent, the
25 legal private guardian of the person) of the following
26 child or children (or of a child likely to be born):
27 (insert name and date of birth of each child, or insert
28 the words "not yet born" to designate a standby guardian
29 for a child likely to be born and the child's expected
30 date of birth).
31 2. Standby Guardian. I hereby designate the
32 following person to be appointed as standby guardian for
33 the my child or children listed above (insert name and
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1 address of person designated).
2 3. Successor Standby Guardian. If the person named
3 in item 2 above cannot or will not act as standby
4 guardian, I designate the following person to be
5 appointed as successor standby guardian for the my child
6 or children: (insert name and address of person
7 designated).
8 4. Date and Signature. This designation is made
9 this (insert day) day of (insert month and year).
10 Signed: (designating parent or legal private
11 guardian if there is no surviving parent)
12 5. Witnesses. I saw the parent (or, if there is no
13 surviving parent, the legal private guardian of the
14 person of the child) sign this designation or the parent
15 (or, if there is no surviving parent, the legal private
16 guardian of the person of the child) told me that he or
17 she the parent signed this designation. Then I signed the
18 designation as a witness in the presence of the parent
19 (or the legal private guardian). I am not designated in
20 this instrument to act as a standby guardian for the
21 parent's child or children. (insert space for names,
22 addresses, and signatures of 2 witnesses).
23 (Source: P.A. 88-529.)
24 (755 ILCS 5/11-5.4)
25 Sec. 11-5.4. Short-term guardian.
26 (a) A parent, adoptive parent, or adjudicated parent,
27 whose parental rights have not been terminated, or the legal
28 private guardian of the person of a minor if there is no
29 surviving parent, may appoint in writing, without court
30 approval, a short-term guardian of an unmarried minor or a
31 child likely to be born. The written instrument appointing a
32 short-term guardian shall be dated and shall identify the
33 appointing parent or legal private guardian, the minor, and
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1 the person appointed to be the short-term guardian. The
2 written instrument shall be signed by, or at the direction
3 of, the appointing parent in the presence of at least 2
4 credible witnesses at least 18 years of age, neither of whom
5 is the person appointed as the short-term guardian. The
6 person appointed as the short-term guardian shall also sign
7 the written instrument, but need not sign at the same time as
8 the appointing parent.
9 (b) A parent shall not appoint a short-term guardian of
10 a minor if (i) the minor has another living parent, adoptive
11 parent or adjudicated parent, whose parental rights have not
12 been terminated, whose whereabouts are known, and who is
13 willing and able to make and carry out day-to-day child care
14 decisions concerning the minor, unless the nonappointing
15 parent consents to the appointment by signing the written
16 instrument of appointment or (ii) there is a guardian for the
17 minor appointed by a court of competent jurisdiction, except
18 that if there is no surviving parent and a legal private
19 guardian of the person of the minor has been appointed, then
20 the legal private guardian may appoint a short-term guardian.
21 (c) The appointment of the short-term guardian is
22 effective immediately upon the date the written instrument is
23 executed, unless the written instrument provides for the
24 appointment to become effective upon a later specified date
25 or event. The short-term guardian shall have authority to
26 act as guardian of the minor as provided in Section 11-13.2
27 for a period of 60 days from the date the appointment is
28 effective, unless the written instrument provides for the
29 appointment to terminate upon an earlier specified date or
30 event. Only one written instrument appointing a short-term
31 guardian may be in force at any given time.
32 (d) Every appointment of a short-term guardian may be
33 amended or revoked by the appointing parent, or by the legal
34 private guardian of the person of the minor if there is no
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1 surviving parent, at any time and in any manner communicated
2 to the short-term guardian or to any other person. Any
3 person other than the short-term guardian to whom a
4 revocation or amendment is communicated or delivered shall
5 make all reasonable efforts to inform the short-term guardian
6 of that fact as promptly as possible.
7 (e) The appointment of a short-term guardian or
8 successor short-term guardian does not affect the rights of
9 the other parent in the minor.
10 (f) The written instrument appointing a short-term
11 guardian may, but need not, be in the following form:
12 APPOINTMENT OF SHORT-TERM GUARDIAN
13 [IT IS IMPORTANT TO READ THE FOLLOWING INSTRUCTIONS:
14 By properly completing this form, a parent, or the legal
15 private guardian of the person of the child if there is no
16 surviving parent, is appointing a guardian of a child of the
17 parent (or a minor ward of the legal private guardian, as the
18 case may be) for a period of up to 60 days. A separate form
19 should be completed for each child. The person appointed as
20 the guardian must sign the form, but need not do so at the
21 same time as the parent or parents or legal private guardian.
22 This form may not be used to appoint a guardian if there
23 is a guardian already appointed for the child, except that if
24 there is no surviving parent and a legal private guardian of
25 the person of the child has been appointed, then the legal
26 private guardian may use this form to appoint a short-term
27 guardian. Both living parents of a child may together
28 appoint a guardian of the child, or, if there is no surviving
29 parent, the legal private guardian of the person of the child
30 may appoint a guardian of the child, for a period of up to 60
31 days through the use of this form. If the short-term guardian
32 is appointed by both living parents of the child, the parents
33 need not sign the form at the same time.]
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1 1. Parent (or legal private guardian if there is no
2 surviving parent) and Child. I, (insert name of
3 appointing parent or legal private guardian if there is
4 no surviving parent), currently residing at (insert
5 address of appointing parent or legal private guardian),
6 am a parent (or, there being no surviving parent, the
7 legal private guardian of the person) of the following
8 child (or of a child likely to be born): (insert name
9 and date of birth of child, or insert the words "not yet
10 born" to appoint a short-term guardian for a child likely
11 to be born and the child's expected date of birth).
12 2. Guardian. I hereby appoint the following person
13 as the short-term guardian for the my child: (insert name
14 and address of appointed person).
15 3. Effective date. This appointment becomes
16 effective: (check one if you wish it to be applicable)
17 ( ) On the date that I state in writing that I
18 am no longer either willing or able to make and
19 carry out day-to-day child care decisions concerning
20 the my child.
21 ( ) On the date that a physician familiar with
22 my condition certifies in writing that I am no
23 longer willing or able to make and carry out
24 day-to-day child care decisions concerning the my
25 child.
26 ( ) On the date that I am admitted as an
27 in-patient to a hospital or other health care
28 institution.
29 ( ) On the following date: (insert date).
30 ( ) Other: (insert other).
31 [NOTE: If this item is not completed, the appointment is
32 effective immediately upon the date the form is signed and
33 dated below.]
34 4. Termination. This appointment shall terminate
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1 60 days after the effective date, unless it terminates
2 sooner as determined by the event or date I have
3 indicated below: (check one if you wish it to be
4 applicable)
5 ( ) On the date that I state in writing that I
6 am willing and able to make and carry out day-to-day
7 child care decisions concerning the my child.
8 ( ) On the date that a physician familiar with
9 my condition certifies in writing that I am willing
10 and able to make and carry out day-to-day child care
11 decisions concerning the my child.
12 ( ) On the date that I am discharged from the
13 hospital or other health care institution where I
14 was admitted as an in-patient, which established the
15 effective date.
16 ( ) On the date which is (state a number of
17 days, but no more than 60 days) days after the
18 effective date.
19 ( ) Other: (insert other).
20 [NOTE: If this item is not completed, the appointment will
21 be effective for a period of 60 days, beginning on the
22 effective date.]
23 5. Date and signature of appointing parent or legal
24 private guardian if there is no surviving parent. This
25 appointment is made this (insert day) day of (insert
26 month and year).
27 Signed: (appointing parent)
28 6. Witnesses. I saw the parent (or, if there is no
29 surviving parent, the legal private guardian of the
30 person of the child) sign this instrument or I saw the
31 parent (or, if there is no surviving parent, the legal
32 private guardian of the person of the child) direct
33 someone to sign this instrument for the parent (or the
34 legal private guardian). Then I signed this instrument as
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1 a witness in the presence of the parent (or the legal
2 private guardian). I am not appointed in this instrument
3 to act as the short-term guardian for the parent's child.
4 (Insert space for names, addresses, and signatures of 2
5 witnesses)
6 7. Acceptance of short-term guardian. I accept
7 this appointment as short-term guardian on this (insert
8 day) day of (insert month and year).
9 Signed: (short-term guardian)
10 8. Consent of child's other parent. I, (insert
11 name of the child's other living parent), currently
12 residing at (insert address of child's other living
13 parent), hereby consent to this appointment on this
14 (insert day) day of (insert month and year).
15 Signed: (consenting parent)
16 [NOTE: The signature of a consenting parent is not necessary
17 if one of the following applies: (i) the child's other parent
18 has died; or (ii) the whereabouts of the child's other parent
19 are not known; or (iii) the child's other parent is not
20 willing or able to make and carry out day-to-day child care
21 decisions concerning the child; or (iv) the child's parents
22 were never married and no court has issued an order
23 establishing parentage.]
24 (Source: P.A. 88-529; 88-670, eff. 12-2-94.)
25 (755 ILCS 5/11-8.1)
26 Sec. 11-8.1. Petition for standby guardian of minor. The
27 petition for appointment of a standby guardian of the person
28 or the estate, or both, of a minor must state, if known: (a)
29 the name, date of birth, and residence of the minor; (b) the
30 names and post office addresses of the nearest relatives of
31 the minor in the following order: (1) the parents, if any; if
32 none, (2) the adult brothers and sisters, if any; if none,
33 (3) the nearest adult kindred; (c) the name and post office
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1 address of the person having custody of the minor; (d) the
2 name, post office address, and, in case of any individual,
3 the age and occupation of the proposed standby guardian; (e)
4 the facts concerning the consent of the minor's parent or
5 parents, or the legal private guardian of the person of the
6 minor if there is no surviving parent, to the appointment of
7 the standby guardian, or the willingness and ability of the
8 minor's parent or parents, if any, or the legal private
9 guardian of the person of the minor if there is no surviving
10 parent, to make and carry out day-to-day child care decisions
11 concerning the minor; (f) the facts concerning the execution
12 or admission to probate of the written designation of the
13 standby guardian, if any, a copy of which shall be attached
14 to or filed with the petition; and (g) the facts concerning
15 any juvenile, adoption, parentage, dissolution, or
16 guardianship court actions pending concerning the minor or
17 the parents of the minor and whether any guardian is
18 currently acting for the minor.
19 (Source: P.A. 88-529.)
20 (755 ILCS 5/11-13.1)
21 Sec. 11-13.1. Duties of standby guardian of a minor.
22 (a) Before a standby guardian of a minor may act, the
23 standby guardian must be appointed by the court of the proper
24 county and, in the case of a standby guardian of the minor's
25 estate, the standby guardian must give the bond prescribed in
26 subsection (d) of Section 11-5.3 and Section 12-2.
27 (b) The standby guardian shall not have any duties or
28 authority to act until the standby guardian receives
29 knowledge (i) of the death or consent of the minor's parent
30 or parents, or of the legal private guardian of the person of
31 the minor if there is no surviving parent, or (ii) the
32 inability of the minor's parent or parents, or of the legal
33 private guardian of the person of the minor if there is no
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1 surviving parent, to make and carry out day-to-day child care
2 decisions concerning the minor for whom the standby guardian
3 has been appointed. This inability of the minor's parent or
4 parents to make and carry out day-to-day child care decisions
5 may be communicated either by the parent's (or, if there is
6 no surviving parent, the legal private guardian's) own
7 admission or by the written certification of the parent's or
8 legal private guardian's attending physician. Immediately
9 upon receipt of that knowledge, the standby guardian shall
10 assume all duties as guardian of the minor as previously
11 determined by the order appointing the standby guardian, and
12 as set forth in Section 11-13, and the standby guardian of
13 the person shall have the authority to act as guardian of the
14 person without direction of court for a period of up to 60
15 days, provided that the authority of the standby guardian may
16 be limited or terminated by a court of competent
17 jurisdiction.
18 (c) Within 60 days of the standby guardian's receipt of
19 knowledge of (i) the death or consent of the minor's parent
20 or parents or legal private guardian, or (ii) the inability
21 of the minor's parent or parents or legal private guardian to
22 make and carry out day-to-day child care decisions concerning
23 the minor, the standby guardian shall file or cause to be
24 filed a petition for the appointment of a guardian of the
25 person or estate, or both, of the minor under Section 11-5.
26 (Source: P.A. 88-529.)