Illinois General Assembly

Previous General Assemblies

Public Act 097-1093


 

Public Act 1093 97TH GENERAL ASSEMBLY



 


 
Public Act 097-1093
 
SB3592 EnrolledLRB097 20182 JWD 65591 b

    AN ACT concerning civil law.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 5. The Guardianship and Advocacy Act is amended by
changing Section 31 as follows:
 
    (20 ILCS 3955/31)  (from Ch. 91 1/2, par. 731)
    Sec. 31. Appointment; availability of State Guardian;
available private guardian. The State Guardian shall not be
appointed if another suitable person is available and willing
to accept the guardianship appointment. In all cases where a
court appoints the State Guardian, the court shall indicate in
the order appointing the guardian as a finding of fact that no
other suitable and willing person could be found to accept the
guardianship appointment. On and after the effective date of
this amendatory Act of the 97th General Assembly, the court
shall also indicate in the order, as a finding of fact, the
reasons that the State Guardian appointment, rather than the
appointment of another interested party, is required. This
requirement shall be waived where the Office of State Guardian
petitions for its own appointment as guardian.
(Source: P.A. 89-396, eff. 8-20-95.)
 
    Section 10. The Clerks of Courts Act is amended by adding
Section 27.3f as follows:
 
    (705 ILCS 105/27.3f new)
    Sec. 27.3f. Guardianship and advocacy operations fee.
    (a) As used in this Section, "guardianship and advocacy"
means the guardianship and advocacy services provided by the
Guardianship and Advocacy Commission and defined in the
Guardianship and Advocacy Act. Viable public guardianship and
advocacy programs, including the public guardianship programs
created and supervised in probate proceedings in the Illinois
courts, are essential to the administration of justice and
ensure that incapacitated persons and their estates are
protected. To defray the expense of maintaining and operating
the divisions and programs of the Guardianship and Advocacy
Commission and to support viable guardianship and advocacy
programs throughout Illinois, each circuit court clerk shall
charge and collect a fee on all matters filed in probate cases
in accordance with this Section, but no fees shall be assessed
against the State Guardian, any State agency under the
jurisdiction of the Governor, any public guardian, or any
State's Attorney.
    (b) No fee specified in this Section shall be imposed in
any minor guardianship established under Article XI of the
Probate Act of 1975, or against an indigent person. An indigent
person shall include any person who meets one or more of the
following criteria:
        (1) He or she is receiving assistance under one or more
    of the following public benefits programs: Supplemental
    Security Income (SSI), Aid to the Aged, Blind, and Disabled
    (AABD), Temporary Assistance for Needy Families (TANF),
    Supplemental Nutrition Assistance Program (SNAP) (formerly
    Food Stamps), General Assistance, State Transitional
    Assistance, or State Children and Family Assistance.
        (2) His or her available income is 125% or less of the
    current poverty level as established by the United States
    Department of Health and Human Services, unless the
    applicant's assets that are not exempt under Part 9 or 10
    of Article XII of the Code of Civil Procedure are of a
    nature and value that the court determines that the
    applicant is able to pay the fees, costs, and charges.
        (3) He or she is, in the discretion of the court,
    unable to proceed in an action without payment of fees,
    costs, and charges and whose payment of those fees, costs,
    and charges would result in substantial hardship to the
    person or his or her family.
        (4) He or she is an indigent person pursuant to Section
    5-105.5 of the Code of Civil Procedure, providing that an
    "indigent person" means a person whose income is 125% or
    less of the current official federal poverty guidelines or
    who is otherwise eligible to receive civil legal services
    under the Legal Services Corporation Act of 1974.
    (c) The clerk is entitled to receive the fee specified in
this Section, which shall be paid in advance, and managed by
the clerk as set out in paragraph (2), except that, for good
cause shown, the court may suspend, reduce, or release the
costs payable under this Section:
        (1) For administration of the estate of a decedent
    (whether testate or intestate) or of a missing person, a
    fee of $100.
        (2) The guardianship and advocacy operations fee, as
    outlined in this Section, shall be in addition to all other
    fees and charges and assessable as costs. Five percent of
    the fee shall be retained by the clerk for deposit into the
    Circuit Court Clerk Operation and Administrative Fund to
    defray costs of collection and 95% of the fee shall be
    disbursed within 60 days after receipt by the circuit clerk
    to the State Treasurer for deposit by the State Treasurer
    into the Guardianship and Advocacy Fund.
 
    Section 15. The Probate Act of 1975 is amended by changing
Sections 11a-12 and 11a-20 as follows:
 
    (755 ILCS 5/11a-12)  (from Ch. 110 1/2, par. 11a-12)
    Sec. 11a-12. Order of appointment.)
    (a) If basis for the appointment of a guardian as specified
in Section 11a-3 is not found, the court shall dismiss the
petition.
    (b) If the respondent is adjudged to be disabled and to
lack some but not all of the be totally without capacity as
specified in Section 11a-3, and if the court finds that limited
guardianship is necessary for the protection of will not
provide sufficient protection for the disabled person, his or
her estate, or both, the court shall appoint a limited plenary
guardian for the respondent's person or estate or both. The
court shall enter a written order stating the factual basis for
its findings and specifying the duties and powers of the
guardian and the legal disabilities to which the respondent is
subject.
    (c) If the respondent is adjudged to be disabled and to be
totally without lack some but not all of the capacity as
specified in Section 11a-3, and if the court finds that limited
guardianship will not provide sufficient is necessary for the
protection for of the disabled person, his or her estate, or
both, the court shall appoint a plenary guardian for limited
guardian of the respondent's person or estate or both. The
court shall enter a written order stating the factual basis for
its findings and specifying the duties and powers of the
guardian and the legal disabilities to which the respondent is
subject.
    (d) The selection of the guardian shall be in the
discretion of the court, which shall give due consideration to
the preference of the disabled person as to a guardian, as well
as the qualifications of the proposed guardian, in making its
appointment.
(Source: P.A. 89-396, eff. 8-20-95.)
 
    (755 ILCS 5/11a-20)  (from Ch. 110 1/2, par. 11a-20)
    Sec. 11a-20. Termination of adjudication of disability -
Revocation of letters - modification.) (a) Except as provided
in subsection (b-5), upon Upon the filing of a petition by or
on behalf of a disabled person or on its own motion, the court
may terminate the adjudication of disability of the ward,
revoke the letters of guardianship of the estate or person, or
both, or modify the duties of the guardian if the ward's
capacity to perform the tasks necessary for the care of his
person or the management of his estate has been demonstrated by
clear and convincing evidence. A report or testimony by a
licensed physician is not a prerequisite for termination,
revocation or modification of a guardianship order under this
subsection (a).
    (b) Except as provided in subsection (b-5), a A request by
the ward or any other person on the ward's behalf, under this
Section may be communicated to the court or judge by any means,
including but not limited to informal letter, telephone call or
visit. Upon receipt of a request from the ward or another
person, the court may appoint a guardian ad litem to
investigate and report to the court concerning the allegations
made in conjunction with said request, and if the ward wishes
to terminate, revoke, or modify the guardianship order, to
prepare the ward's petition and to render such other services
as the court directs.
    (b-5) Upon the filing of a verified petition by the
guardian of the disabled person or the disabled person, the
court may terminate the adjudication of disability of the ward,
revoke the letters of guardianship of the estate or person, or
both, or modify the duties of the guardian if: (i) a report
completed in accordance with subsection (a) of Section 11a-9
states that the disabled person is no longer in need of
guardianship or that the type and scope of guardianship should
be modified; (ii) the disabled person no longer wishes to be
under guardianship or desires that the type and scope of
guardianship be modified; and (iii) the guardian of the
disabled person states that it is in the best interest of the
disabled person to terminate the adjudication of disability of
the ward, revoke the letters of guardianship of the estate or
person, or both, or modify the duties of the guardian, and
provides the basis thereof. In a proceeding brought pursuant to
this subsection (b-5), the court may terminate the adjudication
of disability of the ward, revoke the letters of guardianship
of the estate or person, or both, or modify the duties of the
guardian, unless it has been demonstrated by clear and
convincing evidence that the ward is incapable of performing
the tasks necessary for the care of his or her person or the
management of his or her estate.
    (c) Notice of the hearing on a petition under this Section,
together with a copy of the petition, shall be given to the
ward, unless he is the petitioner, and to each and every
guardian to whom letters of guardianship have been issued and
not revoked, not less than 14 days before the hearing.
(Source: P.A. 86-605.)

Effective Date: 1/1/2013