Sen. Ira I. Silverstein

Filed: 4/23/2012

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 2894

2    AMENDMENT NO. ______. Amend Senate Bill 2894 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Guardianship and Advocacy Act is amended by
5changing Section 31 as follows:
 
6    (20 ILCS 3955/31)  (from Ch. 91 1/2, par. 731)
7    Sec. 31. Availability of guardian; appointment of State
8Guardian. The State Guardian shall not be appointed if another
9suitable person is available and willing to accept the
10guardianship appointment. In all cases where a court appoints
11the State Guardian, the court shall indicate in the order
12appointing the guardian as a finding of fact that no other
13suitable and willing person could be found to accept the
14guardianship appointment. On and after the effective date of
15this amendatory Act of the 97th General Assembly, the court
16shall also indicate in the order, as a finding of fact, the

 

 

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1reasons that the State Guardian appointment, rather than the
2appointment of another interested party, is required. This
3requirement shall be waived where the Office of State Guardian
4petitions for its own appointment as guardian.
5(Source: P.A. 89-396, eff. 8-20-95.)
 
6    Section 10. The Clerks of Courts Act is amended by adding
7Section 27.3f as follows:
 
8    (705 ILCS 105/27.3f new)
9    Sec. 27.3f. Guardianship and advocacy operations fee.
10    (a) As used in this Section, "guardianship and advocacy"
11means the guardianship and advocacy services provided by the
12Guardianship and Advocacy Commission and defined in the
13Guardianship and Advocacy Act. Viable public guardianship and
14advocacy programs, including the public guardianship programs
15created and supervised in probate proceedings in the Illinois
16courts, are essential to the administration of justice and
17ensure that incapacitated persons and their estates are
18protected. To defray the expense of maintaining and operating
19the divisions and programs of the Guardianship and Advocacy
20Commission and to support viable guardianship and advocacy
21programs throughout Illinois, each circuit court in a county
22with a population of 1,000,000 or more, or a county with a
23population greater than 650,000 but less than 1,000,000 that
24has, though duly authorized action, chosen not to accept

 

 

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1appointment of the Office of State Guardian as the Public
2Guardian under Section 13-1.3 of the Probate Act of 1975, shall
3charge and collect a fee on all matters filed in probate cases
4in accordance with this Section, but no fees shall be assessed
5against the State Guardian, any State agency under the
6jurisdiction of the Governor, any public guardian, or any
7State's Attorney.
8    (b) No fees specified in this Section shall be imposed in
9any minor guardianship established under Article XI of the
10Probate Act of 1975 or against an indigent person. As used in
11this Section, "indigent person" includes any person who meets
12one or more of the following criteria:
13        (1) He or she is receiving assistance under one or more
14    of the following public benefits programs: Supplemental
15    Security Income (SSI), Aid to the Aged, Blind and Disabled
16    (AABD), Temporary Assistance for Needy Families (TANF),
17    Supplemental Nutrition Assistance Program (SNAP), General
18    Assistance, State Transitional Assistance, or State
19    Children and Family Assistance.
20        (2) His or her available income is 125% or less of the
21    current poverty level as established by the United States
22    Department of Health and Human Services, unless the
23    applicant's assets that are not exempt under Part 9 or 10
24    of Article XII of the Code of Civil Procedure are of nature
25    and value that the court determines that the applicant is
26    able to pay the fees, costs, and charges.

 

 

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1        (3) He or she is, in the discretion of the court,
2    unable to proceed in an action without payment of fees,
3    costs, and charges and his or her payment of those fees,
4    costs, and charges would result in substantial hardship to
5    the person or his or her family.
6        (4) He or she is an indigent person pursuant to Section
7    5-105.5 of the Code of Civil Procedure providing that an
8    "indigent person" means a person whose income is 125% or
9    less of the current official federal poverty guidelines or
10    who is otherwise eligible to receive civil legal services
11    under the Legal Services Corporation Act of 1974.
12    (c) The clerk is entitled to receive the fees specified in
13this Section, which shall be paid in advance, and managed by
14the clerk as set out in paragraph (4), except that, for good
15cause shown, the court may suspend, reduce, or release the
16costs payable under this Section:
17        (1) For administration of the estate of a decedent
18    (whether testate or intestate) or of a missing person, a
19    fee of $50, plus the fees specified in paragraph (3),
20    except:
21            (A) When the value of the real and personal
22        property of a decedent (whether testate or intestate)
23        does not exceed $15,000, no fee shall be assessed.
24            (B) When (i) proof of heirship alone is made, (ii)
25        a domestic or foreign will is admitted to probate
26        without administration (including proof of heirship),

 

 

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1        or (iii) letters of office are issued for a particular
2        purpose without administration of the estate, the fee
3        shall be $40.
4        (2) For administration of the estate of a ward that
5    results in the appointment of the Office of State Guardian,
6    the fee shall be $250 plus the fees specified in paragraph
7    (3).
8        (3) In addition to the fees payable under paragraph (1)
9    or (2) of this subsection, the following fees are payable:
10            (A) For each account (other than one final account)
11        filed in the estate of a decedent or ward, the fee
12        shall be $25.
13            (B) For filing a claim in an estate when the amount
14        claimed is $150 or more but less than $500, the fee
15        shall be $100; when the amount claimed is $500 or more
16        but less than $10,000, the fee shall be $115; when the
17        amount claimed is $10,000 or more, the fee shall be
18        $135; provided that the court in allowing a claim may
19        add to the amount allowed the filing fee paid by the
20        claimant.
21            (C) For filing in an estate a claim, petition, or
22        supplemental proceeding based upon an action seeking
23        equitable relief including the construction or contest
24        of a will, enforcement of a contract to make a will,
25        and proceedings involving a testamentary trust or the
26        appointment of a testamentary trustee, the fee shall be

 

 

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1        $60.
2            (D) For filing in an estate (i) the appearance of
3        any person for the purpose of consent or (ii) the
4        appearance of an executor, administrator,
5        administrator to collect, guardian, guardian ad litem,
6        or special administrator, no fee.
7            (E) Except as provided in subparagraph (D) of this
8        paragraph (3), for filing the appearance of any person
9        or persons, the fee shall be $30.
10            (F) For each jury demand, the fee shall be $180.
11            (G) For disposition of the collection of a judgment
12        or settlement of an action or claim for wrongful death
13        of a decedent or of any cause of action of a ward, when
14        there is no other administration of the estate, the fee
15        shall be $50, less any amount paid under subparagraph
16        (B) of paragraph (1) or subparagraph (B) of paragraph
17        (3) except that if the amount involved does not exceed
18        $5,000, the fee, including any amount paid under
19        subparagraph (B) of paragraph (1) or subparagraph (B)
20        of paragraph (3), shall be $20.
21        (4) The guardianship and advocacy operations fees set
22    forth in this Section shall be in addition to all other
23    fees and charges and assessable as costs and shall not be
24    subject to disbursement under Section 27.5 or 27.6 of this
25    Act. Twenty percent of the fee shall be retained by the
26    clerk to defray costs of collection and 80% of the fee

 

 

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1    shall be disbursed within 60 days after receipt by the
2    circuit clerk to the State Treasurer for deposit by the
3    State Treasurer into the Guardianship and Advocacy Fund.
 
4    Section 15. The Probate Act of 1975 is amended by changing
5Sections 11a-3, 11a-12, 11a-20, 13-1, and 13-5 and by adding
6Section 13-1.3 as follows:
 
7    (755 ILCS 5/11a-3)  (from Ch. 110 1/2, par. 11a-3)
8    Sec. 11a-3. Adjudication of disability; Power to appoint
9guardian.
10    (a) Upon the filing of a petition by a reputable person or
11by the alleged disabled person himself or on its own motion,
12the court may adjudge a person to be a disabled person, but
13only if it has been demonstrated by clear and convincing
14evidence that the person is a disabled person as defined in
15Section 11a-2. If the court adjudges a person to be a disabled
16person, the court may appoint (1) a guardian of his person, if
17it has been demonstrated by clear and convincing evidence that
18because of his disability he lacks sufficient understanding or
19capacity to make or communicate responsible decisions
20concerning the care of his person, or (2) a guardian of his
21estate, if it has been demonstrated by clear and convincing
22evidence that because of his disability he is unable to manage
23his estate or financial affairs, or (3) a guardian of his
24person and of his estate.

 

 

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1    (b) Guardianship shall be utilized only as is necessary to
2promote the well-being of the disabled person, to protect him
3from neglect, exploitation, or abuse, and to encourage
4development of his maximum self-reliance and independence.
5Guardianship shall be implemented in the least restrictive
6alternative, shall maximize the alleged disabled person's
7right to self-determination and autonomy, and shall be ordered
8only to the extent necessitated by the individual's actual
9mental, physical and adaptive limitations. In determining the
10least restrictive alternative, the court shall consider
11options that allow the ward to live, learn, and work in a
12setting that places as few limits as possible on the ward's
13rights and personal freedom as appropriate to meet the needs of
14the ward.
15(Source: P.A. 93-435, eff. 1-1-04.)
 
16    (755 ILCS 5/11a-12)  (from Ch. 110 1/2, par. 11a-12)
17    Sec. 11a-12. Order of appointment.)
18    (a) If basis for the appointment of a guardian as specified
19in Section 11a-3 is not found, the court shall dismiss the
20petition.
21    (b) If the respondent is adjudged to be disabled and to
22lack some, but not all, of the be totally without capacity as
23specified in Section 11a-3, and if the court finds that limited
24guardianship is necessary for the protection of will not
25provide sufficient protection for the disabled person, his or

 

 

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1her estate, or both, the court shall appoint a limited plenary
2guardian of for the respondent's person or estate or both. The
3court shall enter a written order stating the factual basis for
4its findings and specifying the duties and powers of the
5guardian and the legal disabilities to which the respondent is
6subject.
7    (c) If the respondent is adjudged to be disabled and to be
8totally without lack some but not all of the capacity as
9specified in Section 11a-3, and if the court finds that limited
10guardianship will not provide sufficient is necessary for the
11protection for of the disabled person, his or her estate, or
12both, the court shall appoint a plenary limited guardian for of
13the respondent's person or estate or both. The court shall
14enter a written order stating the factual basis for its
15findings and specifying the duties and powers of the guardian
16and the legal disabilities to which the respondent is subject.
17    (d) The selection of the guardian shall be in the
18discretion of the court, which shall give due consideration to
19the preference of the disabled person as to a guardian, as well
20as the qualifications of the proposed guardian, in making its
21appointment.
22(Source: P.A. 89-396, eff. 8-20-95.)
 
23    (755 ILCS 5/11a-20)  (from Ch. 110 1/2, par. 11a-20)
24    Sec. 11a-20. Termination of adjudication of disability -
25Revocation of letters - modification.)

 

 

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1    (a) Except as provided in subsection (c), upon Upon the
2filing of a petition by or on behalf of a disabled person or on
3its own motion, the court may terminate the adjudication of
4disability of the ward, revoke the letters of guardianship of
5the estate or person, or both, or modify the duties of the
6guardian if the ward's capacity to perform the tasks necessary
7for the care of his person or the management of his estate has
8been demonstrated by clear and convincing evidence. A report or
9testimony by a licensed physician is not a prerequisite for
10termination, revocation or modification of a guardianship
11order under this subsection.
12    (b) Except as provided in subsection (b-5), a A request by
13the ward or any other person on the ward's behalf, under this
14Section may be communicated to the court or judge by any means,
15including but not limited to informal letter, telephone call or
16visit. Upon receipt of a request from the ward or another
17person, the court may appoint a guardian ad litem to
18investigate and report to the court concerning the allegations
19made in conjunction with said request, and if the ward wishes
20to terminate, revoke, or modify the guardianship order, to
21prepare the ward's petition and to render such other services
22as the court directs.
23    (b-5) Upon the filing of a verified petition by the
24guardian of the disabled person or the disabled person, the
25court may terminate the adjudication of disability of the ward,
26revoke the letters of guardianship of the estate or person, or

 

 

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1both, or modify the duties of the guardian if: (1) a report
2completed in accordance with subsection (a) of Section 11a-9
3states that the disabled person is no longer in need of
4guardianship or that the type and scope of guardianship should
5be modified; (2) the disabled person no longer wishes to be
6under guardianship or desires that the type and scope of
7guardianship be modified; and (3) the guardian of the disabled
8person states that it is in the best interest of the disabled
9person to terminate the adjudication of disability of the ward,
10revoke the letters of guardianship of the estate or person, or
11both, or modify the duties of the guardian and provides the
12basis thereof. In a petition brought pursuant to this
13subsection, the court may terminate the adjudication of
14disability of the ward, revoke the letters of guardianship of
15the estate or person, or both, or modify the duties of the
16guardian, unless it has been demonstrated by clear and
17convincing evidence that the ward is incapable of performing
18the tasks necessary for the care of his person or the
19management of his estate.
20    (c) Notice of the hearing on a petition under this Section,
21together with a copy of the petition, shall be given to the
22ward, unless he is the petitioner, and to each and every
23guardian to whom letters of guardianship have been issued and
24not revoked, not less than 14 days before the hearing.
25(Source: P.A. 86-605.)
 

 

 

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1    (755 ILCS 5/13-1)  (from Ch. 110 1/2, par. 13-1)
2    Sec. 13-1. Appointment and term of public administrator and
3public guardian.) Except as provided in Sections Section 13-1.1
4and 13-1.3, before the first Monday of December, 1977 and every
54 years thereafter, and as often as vacancies occur, the
6Governor, by and with the advice and consent of the Senate,
7shall appoint in each county a suitable person to serve as
8public administrator and a suitable person to serve as public
9guardian of the county. The Governor may appoint the same
10person to serve as public guardian and public administrator in
11one or more counties. In considering the number of counties of
12service for any prospective public guardian or public
13administrator the Governor may consider the population of the
14county and the ability of the prospective public guardian or
15public administrator to travel to multiple counties and manage
16estates in multiple counties. Each person so appointed holds
17his office for 4 years from the first Monday of December, 1977
18and every 4 years thereafter or until his successor is
19appointed and qualified.
20(Source: P.A. 96-752, eff. 1-1-10.)
 
21    (755 ILCS 5/13-1.3 new)
22    Sec. 13-1.3. Transition to Office of State Guardian.
23    (a) In counties having a population of 1,000,000 or less,
24the Governor may appoint the Office of State Guardian the
25Public Guardian in any county in which there is no currently

 

 

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1serving public guardian or in which the public guardian's term
2of office has expired. The State Guardian appointed as public
3guardian shall serve continuously and not be subject to 4-year
4terms of appointment. In cases in which the State Guardian
5serves as public guardian, the State Guardian shall assume only
6the duties described in Sections 30 and 32 of the Guardianship
7and Advocacy Act, the monitoring provisions under subsection
8(a) of Section 13-5 of this Act, and shall be otherwise subject
9to the provisions of the Guardianship and Advocacy Act and not
10this Article XIII.
11    (b) In the case where the Governor determines he or she
12will exercise the discretion to appoint in this Section, 60
13days notice shall be given to the chief executive officer of
14the county and the presiding judge of the circuit court in
15which the county is located. If, within 30 days after the
16giving of such notice, the presiding judge or county through
17duly authorized action advises that it will not accept such
18appointment, then thereafter the Office of State Guardian will
19be unavailable for appointment in such county and for each case
20that the State Guardian retains, the county shall pay a
21percentage of costs of continued representation by the State
22Guardian in accordance with the fees schedule from time to time
23established through rulemaking and published by the Joint
24Committee on Administrative Rules for a county or counties of
25similar population.
26    (c) Any organizational entity petitioning for guardianship

 

 

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1of a ward that results in appointment of Office of State
2Guardian shall pay a fee of $500 in addition to all other fees
3owing by statute or rule if that entity is located in a county
4that does not pay probate fees enumerated in Section 27.3f of
5the Clerk of Courts Act.
 
6    (755 ILCS 5/13-5)  (from Ch. 110 1/2, par. 13-5)
7    Sec. 13-5. Powers and duties of public guardian.) The court
8may appoint the public guardian as the guardian of any disabled
9adult who is in need of a public guardian and whose estate
10exceeds $25,000 in counties having a population of 1,000,000 or
11greater, or $100,000 in counties with a population of 650,000
12or greater but less than 1,000,000; and $75,000 in counties
13having a population of 650,000 or less. When a disabled adult
14who has a smaller estate is in need of guardianship services,
15the court shall appoint the State guardian pursuant to Section
1630 of the Guardianship and Advocacy Act. If the public guardian
17is appointed guardian of a disabled adult and the estate of the
18disabled adult is thereafter reduced to less than $25,000, in
19counties having a population of 1,000,000 or more, or less than
20$100,000, in counties having a population of 650,000 or more
21but less than 1,000,000, the public guardian shall continue to
22serve as guardian for as long as the guardianship continues. In
23all other counties, the court may, upon the petition of the
24public guardian and the approval by the court of a final
25accounting of the disabled adult's estate, discharge the public

 

 

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1guardian and transfer the guardianship to the State guardian.
2The public guardian shall serve not less than 14 days' notice
3to the State guardian of the hearing date regarding the
4transfer. When appointed by the court, the public guardian has
5the same powers and duties as other guardians appointed under
6this Act, with the following additions and modifications:
7    (a) The public guardian shall monitor the ward and his care
8and progress on a continuous basis. Monitoring shall at minimum
9consist of monthly contact with the ward, and the receipt of
10periodic reports from all individuals and agencies, public or
11private, providing care or related services to the ward.
12    (b) Placement of a ward outside of the ward's home may be
13made only after the public guardian or his representative has
14visited the facility in which placement is proposed.
15    (c) The public guardian shall prepare an inventory of the
16ward's belongings and assets and shall maintain insurance on
17all of the ward's real and personal property. No personal
18property shall be removed from the ward's possession except for
19storage pending final placement or for liquidation in
20accordance with this Act.
21    (d) The public guardian shall make no substantial
22distribution of the ward's estate without a court order.
23    (e) The public guardian may liquidate assets of the ward to
24pay for the costs of the ward's care and for storage of the
25ward's personal property only after notice of such pending
26action is given to all potential heirs at law, unless notice is

 

 

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1waived by the court; provided, however, that a person who has
2been so notified may elect to pay for care or storage or to pay
3fair market value of the asset or assets sought to be sold in
4lieu of liquidation.
5    (f) Real property of the ward may be sold at fair market
6value after an appraisal of the property has been made by a
7licensed appraiser; provided, however, that the ward's
8residence may be sold only if the court finds that the ward is
9not likely to be able to return home at a future date.
10    (g) The public guardian shall, at such intervals as the
11court may direct, submit to the court an affidavit setting
12forth in detail the services he has provided for the benefit of
13the ward.
14    (h) Upon the death of the ward, the public guardian shall
15turn over to the court-appointed administrator all of the
16ward's assets and an account of his receipt and administration
17of the ward's property. A guardian ad litem shall be appointed
18for an accounting when the estate exceeds the amount set in
19Section 25-1 of this Act for administration of small estates.
20    (i)(1) On petition of any person who appears to have an
21interest in the estate, the court by temporary order may
22restrain the public guardian from performing specified acts of
23administration, disbursement or distribution, or from exercise
24of any powers or discharge of any duties of his office, or make
25any other order to secure proper performance of his duty, if it
26appears to the court that the public guardian might otherwise

 

 

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1take some action contrary to the best interests of the ward.
2Persons with whom the public guardian may transact business may
3be made parties.
4    (2) The matter shall be set for hearing within 10 days
5unless the parties otherwise agree or unless for good cause
6shown the court determines that additional time is required.
7Notice as the court directs shall be given to the public
8guardian and his attorney of record, if any, and to any other
9parties named defendant in the petition.
10    (j) (Blank) On petition of the public guardian, the court
11in its discretion may for good cause shown transfer
12guardianship to the State guardian.
13    (k) No later than January 31 of each year, the public
14guardian shall file an annual report with the clerk of the
15Circuit Court, indicating, with respect to the period covered
16by the report, the number of cases which he has handled, the
17date on which each case was assigned, the date of termination
18of each case which has been closed during the period, the
19disposition of each terminated case, and the total amount of
20fees collected during the period from each ward.
21    (l) (Blank).
22(Source: P.A. 96-752, eff. 1-1-10.)".