State of Illinois
91st General Assembly
Legislation

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91_HB1767eng

 
HB1767 Engrossed                               LRB9103495WHmb

 1        AN  ACT  to  amend  the  Probate  Act of 1975 by changing
 2    Section 11a-18.

 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 Section 11a-18 as follows:

 7        (755 ILCS 5/11a-18) (from Ch. 110 1/2, par. 11a-18)
 8        Sec. 11a-18.  Duties of the estate guardian.
 9        (a)  To the extent specified in  the  order  establishing
10    the  guardianship,  the guardian of the estate shall have the
11    care, management and investment of the estate,  shall  manage
12    the  estate frugally and shall apply the income and principal
13    of the estate  so  far  as  necessary  for  the  comfort  and
14    suitable  support  and  education  of the ward, his minor and
15    adult dependent children, and persons  related  by  blood  or
16    marriage  who  are dependent upon or entitled to support from
17    him, or for any other purpose which the court deems to be for
18    the best interests of the ward, and the court may approve the
19    making on behalf of the ward of such agreements as the  court
20    determines  to be for the ward's best interests. The guardian
21    may make disbursement of his ward's funds and estate directly
22    to the ward or other distributee or in such other manner  and
23    in  such  amounts  as  the court directs.  If the estate of a
24    ward is  derived  in  whole  or  in  part  from  payments  of
25    compensation,  adjusted  compensation,  pension, insurance or
26    other similar benefits made directly to  the  estate  by  the
27    Veterans  Administration, notice of the application for leave
28    to invest or expend the ward's funds or estate, together with
29    a copy of the petition and proposed order, shall be given  to
30    the Veterans' Administration Regional Office in this State at
31    least 7 days before the hearing on the application.
 
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 1        (a-5)  The  probate  court,  upon petition of a guardian,
 2    other than the guardian of a minor, and after notice  to  all
 3    other  persons interested as the court directs, may authorize
 4    the guardian to exercise any or all powers  over  the  estate
 5    and business affairs of the ward that the ward could exercise
 6    if present and not under disability.  The court may authorize
 7    the  taking  of  an  action  or  the application of funds not
 8    required for the ward's current and  future  maintenance  and
 9    support  in  any  manner  approved  by  the court as being in
10    keeping with  the  ward's  wishes  so  far  as  they  can  be
11    ascertained.  The  court  must consider the permanence of the
12    ward's disabling condition and the  natural  objects  of  the
13    ward's  bounty.  In  ascertaining and carrying out the ward's
14    wishes the court may consider, but shall not be  limited  to,
15    minimization   of   State   or  federal  income,  estate,  or
16    inheritance  taxes;  and  providing   gifts   to   charities,
17    relatives,  and  friends  that  would be likely recipients of
18    donations from the ward.  The ward's wishes as best they  can
19    be  ascertained  shall  be  carried  out,  whether or not tax
20    savings are involved.  Actions or applications of  funds  may
21    include, but shall not be limited to, the following:
22             (1)  making  gifts  of income or principal, or both,
23        of the estate, either outright or in trust;
24             (2)  conveying, releasing, or disclaiming his or her
25        contingent and expectant interests in property, including
26        marital property rights and  any  right  of  survivorship
27        incident to joint tenancy or tenancy by the entirety;
28             (3)  releasing  or  disclaiming his or her powers as
29        trustee, personal representative, custodian  for  minors,
30        or guardian;
31             (4)  exercising,  releasing,  or  disclaiming his or
32        her powers as donee of a power of appointment;
33             (5)  entering into contracts;
34             (6)  creating for the benefit of the ward or others,
 
HB1767 Engrossed            -3-                LRB9103495WHmb
 1        revocable or irrevocable trusts of his  or  her  property
 2        that may extend beyond his or her disability or life.
 3             (7)  exercising  options  of the ward to purchase or
 4        exchange securities or other property;
 5             (8)  exercising the rights  of  the  ward  to  elect
 6        benefit  or  payment  options,  to  terminate,  to change
 7        beneficiaries or ownership, to assign rights, to  borrow,
 8        or  to  receive  cash  value in return for a surrender of
 9        rights under any one or more of the following:
10                  (i)  Life   insurance   policies,   plans,   or
11             benefits.
12                  (ii)  Annuity policies, plans, or benefits.
13                  (iii)  Mutual   fund   and    other    dividend
14             investment plans.
15                  (iv)  Retirement,  profit sharing, and employee
16             welfare plans and benefits;
17             (9)  exercising  his  or  her  right  to  claim   or
18        disclaim  an  elective  share in the estate of his or her
19        deceased spouse and to renounce any interest  by  testate
20        or intestate succession or by inter vivos transfer;
21             (10)  changing the ward's residence or domicile; or
22             (11)  modifying   by   means  of  codicil  or  trust
23        amendment the terms of the ward's will or  any  revocable
24        trust  created  by  the  ward,  as the court may consider
25        advisable in light of changes in applicable tax laws.
26        The guardian in his or her petition shall briefly outline
27    the action or application of funds for which he or she  seeks
28    approval,  the  results  expected to be accomplished thereby,
29    and the tax  savings,  if  any,  expected  to  accrue.    The
30    proposed  action or application of funds may include gifts of
31    the ward's personal property or real estate, but transfers of
32    real estate shall be subject to the requirements  of  Article
33    XX  Section  20 of this Act.  Gifts may be for the benefit of
34    prospective legatees, devisees, or heirs apparent of the ward
 
HB1767 Engrossed            -4-                LRB9103495WHmb
 1    or may be made to individuals or charities in which the  ward
 2    is  believed  to  have  an interest.  The guardian shall also
 3    indicate in the petition  that  any  planned  disposition  is
 4    consistent  with  the  intentions of the ward insofar as they
 5    can be ascertained, and if the ward's  intentions  cannot  be
 6    ascertained,  the ward will be presumed to favor reduction in
 7    the incidents of various forms of taxation  and  the  partial
 8    distribution  of  his  or  her  estate  as  provided  in this
 9    subsection.  The guardian shall not, however, be required  to
10    include  as  a beneficiary or fiduciary any person who he has
11    reason to believe would be excluded by the ward.  A  guardian
12    shall   be  required  to  investigate  and  pursue  a  ward's
13    eligibility for governmental benefits.
14        Notwithstanding the powers  granted  in  this  subsection
15    (a-5),  the  guardian of the estate shall have no duty to (i)
16    investigate or evaluate the estate and  business  affairs  of
17    the  ward  for  purposes  of  taking  or proposing any action
18    authorized by this Section or (ii)  petition  the  court  for
19    authority to exercise the powers granted in this Section.
20        (b)  Upon  the  direction  of  the court which issued his
21    letters, a guardian may perform the  contracts  of  his  ward
22    which were legally subsisting at the time of the commencement
23    of  the  ward's  disability.   The  court  may  authorize the
24    guardian to execute and deliver any bill  of  sale,  deed  or
25    other instrument.
26        (c)  The  guardian  of  the estate of a ward shall appear
27    for and represent the ward in all  legal  proceedings  unless
28    another  person  is appointed for that purpose as guardian or
29    next friend.  This does not impair the power of any court  to
30    appoint  a  guardian  ad  litem  or next friend to defend the
31    interests of the ward in that court, or to appoint  or  allow
32    any  person  as  the  next  friend  of  a  ward  to commence,
33    prosecute or defend any proceeding  in  his  behalf.  Without
34    impairing  the  power  of  the  court  in any respect, if the
 
HB1767 Engrossed            -5-                LRB9103495WHmb
 1    guardian of the estate of a ward and another person  as  next
 2    friend  shall  appear  for  and represent the ward in a legal
 3    proceeding in which  the  compensation  of  the  attorney  or
 4    attorneys representing the guardian and next friend is solely
 5    determined  under  a contingent fee arrangement, the guardian
 6    of the estate of the ward shall not participate  in  or  have
 7    any  duty  to  review  the  prosecution  of  the  action,  to
 8    participate   in   or   review  the  appropriateness  of  any
 9    settlement of the action, or to participate in or review  any
10    determination  of  the appropriateness of any fees awarded to
11    the attorney or attorneys employed in the prosecution of  the
12    action.
13        (d)  Adjudication  of  disability  shall  not  revoke  or
14    otherwise  terminate  a trust which is revocable by the ward.
15    A guardian of the estate shall have no authority to revoke  a
16    trust  that  is  revocable by the ward, except that the court
17    may authorize a guardian to revoke a Totten trust or  similar
18    deposit  or  withdrawable  capital  account  in  trust to the
19    extent necessary to provide funds for the purposes  specified
20    in  paragraph  (a)  of  this  Section.  If the trustee of any
21    trust for the benefit of the ward has discretionary power  to
22    apply income or principal for the ward's benefit, the trustee
23    shall  not  be  required  to  distribute any of the income or
24    principal to the guardian  of  the  ward's  estate,  but  the
25    guardian  may bring an action on behalf of the ward to compel
26    the trustee to exercise the trustee's discretion or  to  seek
27    relief from an abuse of discretion.  This paragraph shall not
28    limit  the  right  of  a  guardian  of  the estate to receive
29    accountings from the trustee on behalf of the ward.
30        (e)  Absent court order pursuant to the  "Illinois  Power
31    of  Attorney  Act"  enacted  by  the  85th  General  Assembly
32    directing  a  guardian  to  exercise  powers of the principal
33    under an agency that survives disability, the  guardian  will
34    have no power, duty or liability with respect to any property
 
HB1767 Engrossed            -6-                LRB9103495WHmb
 1    subject  to  the  agency.  This subsection (e) applies to all
 2    agencies, whenever and wherever executed.
 3        (f)  Upon petition by any  interested  person  (including
 4    the  standby  or  short-term  guardian),  with such notice to
 5    interested persons as the court directs and a finding by  the
 6    court that it is in the best interest of the disabled person,
 7    the  court  may terminate or limit the authority of a standby
 8    or short-term guardian or may enter such other orders as  the
 9    court deems necessary to provide for the best interest of the
10    disabled  person.  The petition for termination or limitation
11    of the authority of a standby or short-term guardian may, but
12    need not,  be  combined  with  a  petition  to  have  another
13    guardian appointed for the disabled person.
14    (Source:  P.A.  89-672,  eff.  8-14-96;  90-345, eff. 8-8-97;
15    90-796, eff. 12-15-98.)

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