State of Illinois
2023 and 2024


Introduced 2/7/2024, by Rep. Maurice A. West, II


755 ILCS 5/11a-9  from Ch. 110 1/2, par. 11a-9
755 ILCS 5/11a-18  from Ch. 110 1/2, par. 11a-18

    Amends the Guardians for Adults with Disabilities Article of the Probate Act of 1975. Provides that the required report that is attached to a petition for adjudication of disability and for appointment of a guardian may contain a psychological evaluation that assesses the cognitive, emotional, and functional capacities of the respondent and that has been performed by a licensed clinical psychologist under the Clinical Psychologist Licensing Act within 3 months of the date of the filing of the petition or within one year of the date of the filing of the petition in the case of an individual with an intellectual disability. Provides that the court may enter an order authorizing the ward to execute a will or codicil upon the request of the ward that is accompanied by a report that states the ward possesses testamentary capacity from a current physician or a licensed clinical psychologist. Effective immediately.

LRB103 38156 JRC 68289 b





HB4963LRB103 38156 JRC 68289 b

1    AN ACT concerning civil law.
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4    Section 5. The Probate Act of 1975 is amended by changing
5Sections 11a-9 and 11a-18 as follows:
6    (755 ILCS 5/11a-9)  (from Ch. 110 1/2, par. 11a-9)
7    Sec. 11a-9. Report.
8    (a) The petition for adjudication of disability and for
9appointment of a guardian should be accompanied by a report
10which contains (1) a description of the nature and type of the
11respondent's disability and an assessment of how the
12disability impacts on the ability of the respondent to make
13decisions or to function independently; (2) an analysis and
14results of evaluations of the respondent's mental and physical
15condition and, where appropriate, educational condition,
16adaptive behavior and social skills, which have been performed
17within 3 months of the date of the filing of the petition, or,
18in the case of an intellectual disability, a psychological
19evaluation of the respondent that has been performed by a
20clinical psychologist licensed under the Clinical Psychologist
21Licensing Act, within one year of the date of the filing of the
22petition, or a psychological evaluation that assesses the
23cognitive, emotional, and functional capacities of the



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1respondent and that has been performed by a licensed clinical
2psychologist under the Clinical Psychologist Licensing Act
3within 3 months of the date of the filing of the petition or
4within one year of the date of the filing of the petition in
5the case of an individual with an intellectual disability; (3)
6an opinion as to whether guardianship is needed, the type and
7scope of the guardianship needed, and the reasons therefor;
8(4) a recommendation as to the most suitable living
9arrangement and, where appropriate, treatment or habilitation
10plan for the respondent and the reasons therefor; (5) the
11name, business address, business telephone number, and
12signatures of all persons who performed the evaluations upon
13which the report is based, one of whom shall be a licensed
14physician or a licensed clinical psychologist under the
15Clinical Psychologist Licensing Act, or may, in the case of an
16intellectual disability, be a clinical psychologist licensed
17under the Clinical Psychologist Licensing Act, and a statement
18of the certification, license, or other credentials that
19qualify the evaluators who prepared the report.
20    (b) If for any reason no report accompanies the petition,
21the court shall order appropriate evaluations to be performed
22by a qualified person or persons and a report prepared and
23filed with the court at least 10 days prior to the hearing.
24    (b-5) Upon oral or written motion by the respondent or the
25guardian ad litem or upon the court's own motion, the court
26shall appoint one or more independent experts to examine the



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1respondent. Upon the filing with the court of a verified
2statement of services rendered by the expert or experts, the
3court shall determine a reasonable fee for the services
4performed. If the respondent is unable to pay the fee, the
5court may enter an order upon the petitioner to pay the entire
6fee or such amount as the respondent is unable to pay. However,
7in cases where the Office of State Guardian is the petitioner,
8consistent with Section 30 of the Guardianship and Advocacy
9Act, no expert services fees shall be assessed against the
10Office of the State Guardian.
11    (c) Unless the court otherwise directs, any report
12prepared pursuant to this Section shall not be made part of the
13public record of the proceedings but shall be available to the
14court or an appellate court in which the proceedings are
15subject to review, to the respondent, the petitioner, the
16guardian, and their attorneys, to the respondent's guardian ad
17litem, and to such other persons as the court may direct.
18    Accessibility to a report prepared pursuant to this
19Section shall be in accordance with Section 5 of the Court
20Record and Document Accessibility Act.
21(Source: P.A. 102-109, eff. 1-1-22; 103-166, eff. 1-1-24.)
22    (755 ILCS 5/11a-18)  (from Ch. 110 1/2, par. 11a-18)
23    Sec. 11a-18. Duties of the estate guardian.
24    (a) To the extent specified in the order establishing the
25guardianship, the guardian of the estate shall have the care,



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1management and investment of the estate, shall manage the
2estate frugally and shall apply the income and principal of
3the estate so far as necessary for the comfort and suitable
4support and education of the ward, his minor and adult
5dependent children, and persons related by blood or marriage
6who are dependent upon or entitled to support from him, or for
7any other purpose which the court deems to be for the best
8interests of the ward, and the court may approve the making on
9behalf of the ward of such agreements as the court determines
10to be for the ward's best interests. The guardian may make
11disbursement of his ward's funds and estate directly to the
12ward or other distributee or in such other manner and in such
13amounts as the court directs. If the estate of a ward is
14derived in whole or in part from payments of compensation,
15adjusted compensation, pension, insurance or other similar
16benefits made directly to the estate by the Veterans
17Administration, notice of the application for leave to invest
18or expend the ward's funds or estate, together with a copy of
19the petition and proposed order, shall be given to the
20Veterans' Administration Regional Office in this State at
21least 7 days before the hearing on the application.
22    (a-5) The probate court, upon petition of a guardian,
23other than the guardian of a minor, and after notice to all
24other persons interested as the court directs, may authorize
25the guardian to exercise any or all powers over the estate and
26business affairs of the ward that the ward could exercise if



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1present and not under disability. The court may authorize the
2taking of an action or the application of funds not required
3for the ward's current and future maintenance and support in
4any manner approved by the court as being in keeping with the
5ward's wishes so far as they can be ascertained. The court must
6consider the permanence of the ward's disabling condition and
7the natural objects of the ward's bounty. In ascertaining and
8carrying out the ward's wishes the court may consider, but
9shall not be limited to, minimization of State or federal
10income, estate, or inheritance taxes; and providing gifts to
11charities, relatives, and friends that would be likely
12recipients of donations from the ward. The ward's wishes as
13best they can be ascertained shall be carried out, whether or
14not tax savings are involved. Actions or applications of funds
15may include, but shall not be limited to, the following:
16        (1) making gifts of income or principal, or both, of
17    the estate, either outright or in trust;
18        (2) conveying, releasing, or disclaiming his or her
19    contingent and expectant interests in property, including
20    marital property rights and any right of survivorship
21    incident to joint tenancy or tenancy by the entirety;
22        (3) releasing or disclaiming his or her powers as
23    trustee, personal representative, custodian for minors, or
24    guardian;
25        (4) exercising, releasing, or disclaiming his or her
26    powers as donee of a power of appointment;



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1        (5) entering into contracts;
2        (6) creating for the benefit of the ward or others,
3    revocable or irrevocable trusts of his or her property
4    that may extend beyond his or her disability or life;
5        (7) exercising options of the ward to purchase or
6    exchange securities or other property;
7        (8) exercising the rights of the ward to elect benefit
8    or payment options, to terminate, to change beneficiaries
9    or ownership, to assign rights, to borrow, or to receive
10    cash value in return for a surrender of rights under any
11    one or more of the following:
12            (i) life insurance policies, plans, or benefits,
13            (ii) annuity policies, plans, or benefits,
14            (iii) mutual fund and other dividend investment
15        plans,
16            (iv) retirement, profit sharing, and employee
17        welfare plans and benefits;
18        (9) exercising his or her right to claim or disclaim
19    an elective share in the estate of his or her deceased
20    spouse and to renounce any interest by testate or
21    intestate succession or by inter vivos transfer;
22        (10) changing the ward's residence or domicile; or
23        (11) modifying by means of codicil or trust amendment
24    the terms of the ward's will or any revocable trust
25    created by the ward, as the court may consider advisable
26    in light of changes in applicable tax laws.



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1    The guardian in his or her petition shall briefly outline
2the action or application of funds for which he or she seeks
3approval, the results expected to be accomplished thereby, and
4the tax savings, if any, expected to accrue. The proposed
5action or application of funds may include gifts of the ward's
6personal property or real estate, but transfers of real estate
7shall be subject to the requirements of Section 20 of this Act.
8Gifts may be for the benefit of prospective legatees,
9devisees, or heirs apparent of the ward or may be made to
10individuals or charities in which the ward is believed to have
11an interest. The guardian shall also indicate in the petition
12that any planned disposition is consistent with the intentions
13of the ward insofar as they can be ascertained, and if the
14ward's intentions cannot be ascertained, the ward will be
15presumed to favor reduction in the incidents of various forms
16of taxation and the partial distribution of his or her estate
17as provided in this subsection. The guardian shall not,
18however, be required to include as a beneficiary or fiduciary
19any person who he has reason to believe would be excluded by
20the ward. A guardian shall be required to investigate and
21pursue a ward's eligibility for governmental benefits.
22    (a-6) The guardian may, without an order of court, open,
23maintain, and transfer funds to an ABLE account on behalf of
24the ward and the ward's minor and adult dependent children as
25specified under Section 16.6 of the State Treasurer Act.
26    (b) Upon the direction of the court which issued his



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1letters, a guardian may perform the contracts of his ward
2which were legally subsisting at the time of the commencement
3of the ward's disability. The court may authorize the guardian
4to execute and deliver any bill of sale, deed or other
6    (c) The guardian of the estate of a ward shall appear for
7and represent the ward in all legal proceedings unless another
8person is appointed for that purpose as guardian or next
9friend. This does not impair the power of any court to appoint
10a guardian ad litem or next friend to defend the interests of
11the ward in that court, or to appoint or allow any person as
12the next friend of a ward to commence, prosecute or defend any
13proceeding in his behalf. Without impairing the power of the
14court in any respect, if the guardian of the estate of a ward
15and another person as next friend shall appear for and
16represent the ward in a legal proceeding in which the
17compensation of the attorney or attorneys representing the
18guardian and next friend is solely determined under a
19contingent fee arrangement, the guardian of the estate of the
20ward shall not participate in or have any duty to review the
21prosecution of the action, to participate in or review the
22appropriateness of any settlement of the action, or to
23participate in or review any determination of the
24appropriateness of any fees awarded to the attorney or
25attorneys employed in the prosecution of the action.
26    (d) Adjudication of disability shall not revoke or



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1otherwise terminate a trust which is revocable by the ward. A
2guardian of the estate shall have no authority to revoke a
3trust that is revocable by the ward, except that the court may
4authorize a guardian to revoke a Totten trust or similar
5deposit or withdrawable capital account in trust to the extent
6necessary to provide funds for the purposes specified in
7paragraph (a) of this Section. If the trustee of any trust for
8the benefit of the ward has discretionary power to apply
9income or principal for the ward's benefit, the trustee shall
10not be required to distribute any of the income or principal to
11the guardian of the ward's estate, but the guardian may bring
12an action on behalf of the ward to compel the trustee to
13exercise the trustee's discretion or to seek relief from an
14abuse of discretion. This paragraph shall not limit the right
15of a guardian of the estate to receive accountings from the
16trustee on behalf of the ward.
17    (d-5) Upon a verified petition by the plenary or limited
18guardian of the estate or the request of the ward that is
19accompanied by a current physician's or a licensed clinical
20psychologist's report that states the ward possesses
21testamentary capacity, the court may enter an order
22authorizing the ward to execute a will or codicil. In so
23ordering, the court shall authorize the guardian to retain
24independent counsel for the ward with whom the ward may
25execute or modify a will or codicil.
26    (e) Absent court order pursuant to the Illinois Power of



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1Attorney Act directing a guardian to exercise powers of the
2principal under an agency that survives disability, the
3guardian will have no power, duty or liability with respect to
4any property subject to the agency. This subsection (e)
5applies to all agencies, whenever and wherever executed.
6    (f) Upon petition by any interested person (including the
7standby or short-term guardian), with such notice to
8interested persons as the court directs and a finding by the
9court that it is in the best interests of the person with a
10disability, the court may terminate or limit the authority of
11a standby or short-term guardian or may enter such other
12orders as the court deems necessary to provide for the best
13interests of the person with a disability. The petition for
14termination or limitation of the authority of a standby or
15short-term guardian may, but need not, be combined with a
16petition to have another guardian appointed for the person
17with a disability.
18(Source: P.A. 101-329, eff. 8-9-19; 102-72, eff. 1-1-22.)
19    Section 99. Effective date. This Act takes effect upon
20becoming law.