Illinois General Assembly - Full Text of Public Act 096-0177
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Public Act 096-0177


 

Public Act 0177 96TH GENERAL ASSEMBLY



 


 
Public Act 096-0177
 
HB0759 Enrolled LRB096 04099 DRJ 14138 b

    AN ACT concerning civil law.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
Article 1. General Provisions

 
    Section 101. Short title. This Act may be cited as the
Uniform Adult Guardianship and Protective Proceedings
Jurisdiction Act.
 
    Section 102. Definitions. In this Act:
    (1) "Adult" means an individual who has attained 18 years
of age.
    (2) "Conservator" means a person appointed by the court to
administer the property of an adult, including a person
appointed under the Probate Act of 1975.
    (3) "Guardian" means a person appointed by the court to
make decisions regarding the person of an adult, including a
person appointed under the Probate Act of 1975.
    (4) "Guardianship order" means an order appointing a
guardian.
    (5) "Guardianship proceeding" means a judicial proceeding
in which an order for the appointment of a guardian is sought
or has been issued.
    (6) "Incapacitated person" means an adult for whom a
guardian has been appointed.
    (7) "Party" means the respondent, petitioner, guardian,
conservator, or any other person allowed by the court to
participate in a guardianship or protective proceeding.
    (8) "Person", except in the term incapacitated person or
protected person, means an individual, corporation, business
trust, estate, trust, partnership, limited liability company,
association, joint venture, public corporation, government or
governmental subdivision, agency, or instrumentality, or any
other legal or commercial entity.
    (9) "Protected person" means an adult for whom a protective
order has been issued.
    (10) "Protective order" means an order appointing a
conservator or other order related to management of an adult's
property.
    (11) "Protective proceeding" means a judicial proceeding
in which a protective order is sought or has been issued.
    (12) "Record" means information that is inscribed on a
tangible medium or that is stored in an electronic or other
medium and is retrievable in perceivable form.
    (13) "Respondent" means an adult for whom a protective
order or the appointment of a guardian is sought.
    (14) "State" means a state of the United States, the
District of Columbia, Puerto Rico, the United States Virgin
Islands, a federally recognized Indian tribe, or any territory
or insular possession subject to the jurisdiction of the United
States.
 
    Section 103. International application of Act. A court of
this state may treat a foreign country as if it were a state
for the purpose of applying this Article and Articles 2, 3, and
5.
 
    Section 104. Communication between courts.
    (a) A court of this state may communicate with a court in
another state concerning a proceeding arising under this Act.
The court may allow the parties to participate in the
communication. Except as otherwise provided in subsection (b),
the court shall make a record of the communication. The record
may be limited to the fact that the communication occurred.
    (b) Courts may communicate concerning schedules,
calendars, court records, and other administrative matters
without making a record.
 
    Section 105. Cooperation between courts.
    (a) In a guardianship or protective proceeding in this
state, a court of this state may request the appropriate court
of another state to do any of the following:
        (1) hold an evidentiary hearing;
        (2) order a person in that state to produce evidence or
    give testimony pursuant to procedures of that state;
        (3) order that an evaluation or assessment be made of
    the respondent;
        (4) order any appropriate investigation of a person
    involved in a proceeding;
        (5) forward to the court of this state a certified copy
    of the transcript or other record of a hearing under
    paragraph (1) or any other proceeding, any evidence
    otherwise produced under paragraph (2), and any evaluation
    or assessment prepared in compliance with an order under
    paragraph (3) or (4);
        (6) issue any order necessary to assure the appearance
    in the proceeding of a person whose presence is necessary
    for the court to make a determination, including the
    respondent or the incapacitated or protected person;
        (7) issue an order authorizing the release of medical,
    financial, criminal, or other relevant information in that
    state, including protected health information as defined
    in 45 C.F.R. Section 164.504.
    (b) If a court of another state in which a guardianship or
protective proceeding is pending requests assistance of the
kind provided in subsection (a), a court of this state has
jurisdiction for the limited purpose of granting the request or
making reasonable efforts to comply with the request.
 
    Section 106. Taking testimony in another state.
    (a) In a guardianship or protective proceeding, in addition
to other procedures that may be available, testimony of a
witness who is located in another state may be offered by
deposition or other means allowable in this state for testimony
taken in another state. The court on its own motion may order
that the testimony of a witness be taken in another state and
may prescribe the manner in which and the terms upon which the
testimony is to be taken.
    (b) In a guardianship or protective proceeding, a court in
this state may permit a witness located in another state to be
deposed or to testify by telephone or audiovisual or other
electronic means. A court of this state shall cooperate with
the court of the other state in designating an appropriate
location for the deposition or testimony.
    (c) Documentary evidence transmitted from another state to
a court of this state by technological means that do not
produce an original writing may not be excluded from evidence
on an objection based on the best evidence rule.
 
Article 2. Jurisdiction

 
    Section 201. Definitions; significant connection factors.
    (a) In this Article:
        (1) "Emergency" means a circumstance that likely will
    result in substantial harm to a respondent's health,
    safety, or welfare, and for which the appointment of a
    guardian is necessary because no other person has authority
    and is willing to act on the respondent's behalf.
        (2) "Home state" means the state in which the
    respondent was physically present, including any period of
    temporary absence, for at least six consecutive months
    immediately before the filing of a petition for a
    protective order or the appointment of a guardian; or if
    none, the state in which the respondent was physically
    present, including any period of temporary absence, for at
    least six consecutive months ending within the six months
    prior to the filing of the petition.
        (3) "Significant-connection state" means a state,
    other than the home state, with which a respondent has a
    significant connection other than mere physical presence
    and in which substantial evidence concerning the
    respondent is available.
    (b) In determining under Section 203 and Section 301(e)
whether a respondent has a significant connection with a
particular state, the court shall consider:
        (1) the location of the respondent's family and other
    persons required to be notified of the guardianship or
    protective proceeding;
        (2) the length of time the respondent at any time was
    physically present in the state and the duration of any
    absence;
        (3) the location of the respondent's property; and
        (4) the extent to which the respondent has ties to the
    state such as voting registration, state or local tax
    return filing, vehicle registration, driver's license,
    social relationship, and receipt of services.
 
    Section 202. Exclusive basis. This Article provides the
exclusive jurisdictional basis for a court of this state to
appoint a guardian or issue a protective order for an adult.
 
    Section 203. Jurisdiction. A court of this state has
jurisdiction to appoint a guardian or issue a protective order
for a respondent if:
        (1) this state is the respondent's home state;
        (2) on the date the petition is filed, this state is a
    significant-connection state and:
            (A) the respondent does not have a home state or a
        court of the respondent's home state has declined to
        exercise jurisdiction because this state is a more
        appropriate forum; or
            (B) the respondent has a home state, a petition for
        an appointment or order is not pending in a court of
        that state or another significant-connection state,
        and, before the court makes the appointment or issues
        the order:
                (i) a petition for an appointment or order is
            not filed in the respondent's home state;
                (ii) an objection to the court's jurisdiction
            is not filed by a person required to be notified of
            the proceeding; and
                (iii) the court in this state concludes that it
            is an appropriate forum under the factors set forth
            in Section 206;
        (3) this state does not have jurisdiction under either
    paragraph (1) or (2), the respondent's home state and all
    significant-connection states have declined to exercise
    jurisdiction because this state is the more appropriate
    forum, and jurisdiction in this state is consistent with
    the constitutions of this state and the United States; or
        (4) the requirements for special jurisdiction under
    Section 204 are met.
 
    Section 204. Special jurisdiction.
    (a) A court of this state lacking jurisdiction under
Section 203(1) through (3) has special jurisdiction to do any
of the following:
        (1) appoint a guardian in an emergency for a term not
    exceeding 90 days for a respondent who is physically
    present in this state;
        (2) issue a protective order with respect to real or
    tangible personal property located in this state;
        (3) appoint a guardian or conservator for an
    incapacitated or protected person for whom a provisional
    order to transfer the proceeding from another state has
    been issued under procedures similar to Section 301.
    (b) If a petition for the appointment of a guardian in an
emergency is brought in this state and this state was not the
respondent's home state on the date the petition was filed, the
court shall dismiss the proceeding at the request of the court
of the home state, if any, whether dismissal is requested
before or after the emergency appointment.
 
    Section 205. Exclusive and continuing jurisdiction. Except
as otherwise provided in Section 204, a court that has
appointed a guardian or issued a protective order consistent
with this Act has exclusive and continuing jurisdiction over
the proceeding until it is terminated by the court or the
appointment or order expires by its own terms.
 
    Section 206. Appropriate forum.
    (a) A court of this state having jurisdiction under Section
203 to appoint a guardian or issue a protective order may
decline to exercise its jurisdiction if it determines at any
time that a court of another state is a more appropriate forum.
    (b) If a court of this state declines to exercise its
jurisdiction under subsection (a), it shall either dismiss or
stay the proceeding. The court may impose any condition the
court considers just and proper, including the condition that a
petition for the appointment of a guardian or issuance of a
protective order be filed promptly in another state.
    (c) In determining whether it is an appropriate forum, the
court shall consider all relevant factors, including:
        (1) any expressed preference of the respondent;
        (2) whether abuse, neglect, or exploitation of the
    respondent has occurred or is likely to occur and which
    state could best protect the respondent from the abuse,
    neglect, or exploitation;
        (3) the length of time the respondent was physically
    present in or was a legal resident of this or another
    state;
        (4) the distance of the respondent from the court in
    each state;
        (5) the financial circumstances of the respondent's
    estate;
        (6) the nature and location of the evidence;
        (7) the ability of the court in each state to decide
    the issue expeditiously and the procedures necessary to
    present evidence;
        (8) the familiarity of the court of each state with the
    facts and issues in the proceeding; and
        (9) if an appointment were made, the court's ability to
    monitor the conduct of the guardian or conservator.
 
    Section 207. Jurisdiction declined by reason of conduct.
    (a) If at any time a court of this state determines that it
acquired jurisdiction to appoint a guardian or issue a
protective order because of unjustifiable conduct, the court
may:
        (1) decline to exercise jurisdiction;
        (2) exercise jurisdiction for the limited purpose of
    fashioning an appropriate remedy to ensure the health,
    safety, and welfare of the respondent or the protection of
    the respondent's property or prevent a repetition of the
    unjustifiable conduct, including staying the proceeding
    until a petition for the appointment of a guardian or
    issuance of a protective order is filed in a court of
    another state having jurisdiction; or
        (3) continue to exercise jurisdiction after
    considering:
            (A) the extent to which the respondent and all
        persons required to be notified of the proceedings have
        acquiesced in the exercise of the court's
        jurisdiction;
            (B) whether it is a more appropriate forum than the
        court of any other state under the factors set forth in
        Section 206(c); and
            (C) whether the court of any other state would have
        jurisdiction under factual circumstances in
        substantial conformity with the jurisdictional
        standards of Section 203.
    (b) If a court of this state determines that it acquired
jurisdiction to appoint a guardian or issue a protective order
because a party seeking to invoke its jurisdiction engaged in
unjustifiable conduct, it may assess against that party
necessary and reasonable expenses, including attorney's fees,
investigative fees, court costs, communication expenses,
witness fees and expenses, and travel expenses. The court may
not assess fees, costs, or expenses of any kind against this
state or a governmental subdivision, agency, or
instrumentality of this state unless authorized by law other
than this Act.
 
    Section 208. Notice of proceeding. If a petition for the
appointment of a guardian or issuance of a protective order is
brought in this state and this state was not the respondent's
home state on the date the petition was filed, in addition to
complying with the notice requirements of this state, notice of
the petition must be given to those persons who would be
entitled to notice of the petition if a proceeding were brought
in the respondent's home state. The notice must be given in the
same manner as notice is required to be given in this state.
 
    Section 209. Proceedings in more than one state. Except for
a petition for the appointment of a guardian in an emergency or
issuance of a protective order limited to property located in
this state under Section 204(a)(1) or (a)(2), if a petition for
the appointment of a guardian or issuance of a protective order
is filed in this state and in another state and neither
petition has been dismissed or withdrawn, the following rules
apply:
        (1) If the court in this state has jurisdiction under
    Section 203, it may proceed with the case unless a court in
    another state acquires jurisdiction under provisions
    similar to Section 203 before the appointment or issuance
    of the order.
        (2) If the court in this state does not have
    jurisdiction under Section 203, whether at the time the
    petition is filed or at any time before the appointment or
    issuance of the order, the court shall stay the proceeding
    and communicate with the court in the other state. If the
    court in the other state has jurisdiction, the court in
    this state shall dismiss the petition unless the court in
    the other state determines that the court in this state is
    a more appropriate forum.
 
Article 3. Transfer of Guardianship or Conservatorship

 
    Section 301. Transfer of guardianship or conservatorship
to another state.
    (a) A guardian or conservator appointed in this state may
petition the court to transfer the guardianship or
conservatorship to another state.
    (b) Notice of a petition under subsection (a) must be given
to the persons that would be entitled to notice of a petition
in this state for the appointment of a guardian or conservator.
    (c) On the court's own motion or on request of the guardian
or conservator, the incapacitated or protected person, or other
person required to be notified of the petition, the court shall
hold a hearing on a petition filed pursuant to subsection (a).
    (d) The court shall issue an order provisionally granting a
petition to transfer a guardianship and shall direct the
guardian to petition for guardianship in the other state if the
court is satisfied that the guardianship will be accepted by
the court in the other state and the court finds that:
        (1) the incapacitated person is physically present in
    or is reasonably expected to move permanently to the other
    state;
        (2) an objection to the transfer has not been made or,
    if an objection has been made, the objector has not
    established that the transfer would be contrary to the
    interests of the incapacitated person; and
        (3) plans for care and services for the incapacitated
    person in the other state are reasonable and sufficient.
    (e) The court shall issue a provisional order granting a
petition to transfer a conservatorship and shall direct the
conservator to petition for conservatorship in the other state
if the court is satisfied that the conservatorship will be
accepted by the court of the other state and the court finds
that:
        (1) the protected person is physically present in or is
    reasonably expected to move permanently to the other state,
    or the protected person has a significant connection to the
    other state considering the factors in Section 201(b);
        (2) an objection to the transfer has not been made or,
    if an objection has been made, the objector has not
    established that the transfer would be contrary to the
    interests of the protected person; and
        (3) adequate arrangements will be made for management
    of the protected person's property.
    (f) The court shall issue a final order confirming the
transfer and terminating the guardianship or conservatorship
upon its receipt of:
        (1) a provisional order accepting the proceeding from
    the court to which the proceeding is to be transferred
    which is issued under provisions similar to Section 302;
    and
        (2) the documents required to terminate a guardianship
    or conservatorship in this state.
 
    Section 302. Accepting guardianship or conservatorship
transferred from another state.
    (a) To confirm transfer of a guardianship or
conservatorship transferred to this state under provisions
similar to Section 301, the guardian or conservator must
petition the court in this state to accept the guardianship or
conservatorship. The petition must include a certified copy of
the other state's provisional order of transfer.
    (b) Notice of a petition under subsection (a) must be given
to those persons that would be entitled to notice if the
petition were a petition for the appointment of a guardian or
issuance of a protective order in both the transferring state
and this state. The notice must be given in the same manner as
notice is required to be given in this state.
    (c) On the court's own motion or on request of the guardian
or conservator, the incapacitated or protected person, or other
person required to be notified of the proceeding, the court
shall hold a hearing on a petition filed pursuant to subsection
(a).
    (d) The court shall issue an order provisionally granting a
petition filed under subsection (a) unless:
        (1) an objection is made and the objector establishes
    that transfer of the proceeding would be contrary to the
    interests of the incapacitated or protected person; or
        (2) the guardian or conservator is ineligible for
    appointment in this state.
    (e) The court shall issue a final order accepting the
proceeding and appointing the guardian or conservator as
guardian or conservator in this state upon its receipt from the
court from which the proceeding is being transferred of a final
order issued under provisions similar to Section 301
transferring the proceeding to this state.
    (f) Not later than 90 days after issuance of a final order
accepting transfer of a guardianship or conservatorship, the
court shall determine whether the guardianship or
conservatorship needs to be modified to conform to the law of
this state.
    (g) In granting a petition under this Section, the court
shall recognize a guardianship or conservatorship order from
the other state, including the determination of the
incapacitated or protected person's incapacity and the
appointment of the guardian or conservator.
    (h) The denial by a court of this state of a petition to
accept a guardianship or conservatorship transferred from
another state does not affect the ability of the guardian or
conservator to seek appointment as guardian or conservator in
this state under the Probate Act of 1975 if the court has
jurisdiction to make an appointment other than by reason of the
provisional order of transfer.
 
Article 4. Registration and Recognition of Orders From Other
States

 
    Section 401. Registration of guardianship orders. If a
guardian has been appointed in another state and a petition for
the appointment of a guardian is not pending in this state, the
guardian appointed in the other state, after giving notice to
the appointing court of an intent to register, may register the
guardianship order in this state by filing as a foreign
judgment in a court, in any appropriate county of this state,
certified copies of the order and letters of office.
 
    Section 402. Registration of protective orders. If a
conservator has been appointed in another state and a petition
for a protective order is not pending in this state, the
conservator appointed in the other state, after giving notice
to the appointing court of an intent to register, may register
the protective order in this state by filing as a foreign
judgment in a court of this state, in any county in which
property belonging to the protected person is located,
certified copies of the order and letters of office and of any
bond.
 
    Section 403. Effect of registration.
    (a) Upon registration of a guardianship or protective order
from another state, the guardian or conservator may exercise in
this state all powers authorized in the order of appointment
except as prohibited under the laws of this state, including
maintaining actions and proceedings in this state and, if the
guardian or conservator is not a resident of this state,
subject to any conditions imposed upon nonresident parties.
    (b) A court of this state may grant any relief available
under this Act and other law of this state to enforce a
registered order.
 
Article 5. Miscellaneous Provisions

 
    Section 501. Uniformity of application and construction.
In applying and construing this uniform Act, consideration must
be given to the need to promote uniformity of the law with
respect to its subject matter among states that enact it.
 
    Section 502. Relation to Electronic Signatures in Global
and National Commerce Act. This Act modifies, limits, and
supersedes the federal Electronic Signatures in Global and
National Commerce Act, 15 U.S.C. Section 7001, et seq., but
does not modify, limit, or supersede Section 101(c) of that
Act, 15 U.S.C. Section 7001(c), or authorize electronic
delivery of any of the notices described in Section 103(b) of
that Act, 15 U.S.C. Section 7003(b).
 
    Section 503. Repeals. (Blank).
 
    Section 504. Transitional provisions.
    (a) This Act applies to guardianship and protective
proceedings begun on or after the effective date of this Act.
    (b) Articles 1, 3, and 4 and Sections 501 and 502 apply to
proceedings begun before the effective date of this Act,
regardless of whether a guardianship or protective order has
been issued.
 
    Section 505. Effective date. (Blank).

Effective Date: 1/1/2010