Full Text of HB5686 98th General Assembly
HB5686 98TH GENERAL ASSEMBLY |
| | 98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014 HB5686 Introduced , by Rep. Barbara Flynn Currie SYNOPSIS AS INTRODUCED: |
| 755 ILCS 5/11-5 | from Ch. 110 1/2, par. 11-5 | 755 ILCS 5/11-5.4 | | 755 ILCS 5/11-8 | from Ch. 110 1/2, par. 11-8 | 755 ILCS 5/11-8.1 | | 755 ILCS 5/11-10.1 | from Ch. 110 1/2, par. 11-10.1 | 755 ILCS 5/11-13 | from Ch. 110 1/2, par. 11-13 |
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Amends the Probate Act of 1975. Provides that a court lacks jurisdiction to proceed on a petition for the appointment of a guardian of a minor if it finds that there is a short-term guardian appointed who is fit, willing, and able to care for the minor and that when the petitioner is not the short-term guardian of the minor, there shall be a rebuttable presumption that the short-term guardian of the minor is fit, willing, and able to care for the minor and that the petitioner shall have the burden of proving that the short-term guardian is not fit, willing, or able to care for the minor or that the short-term guardianship has been vacated. Further provides that the appointment of a short-term guardian does not constitute parental consent for court appointment of a guardian. Provides that if a short-term guardian appointed by the minor's parent or guardian petitions for guardianship or standby guardianship, his or her petition must state certain facts concerning his or her appointment as short-term guardian and include a copy of the short-term guardianship appointment with the petition. Provides that a guardian of a minor shall not remove a minor from the State for more than 30 days without first petitioning the court for removal and obtaining leave of the court.
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| | A BILL FOR |
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| 1 | | AN ACT concerning civil law.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Probate Act of 1975 is amended by changing | 5 | | Sections 11-5, 11-5.4, 11-8, 11-8.1, 11-10.1, and 11-13 as | 6 | | follows:
| 7 | | (755 ILCS 5/11-5) (from Ch. 110 1/2, par. 11-5)
| 8 | | Sec. 11-5. Appointment of guardian.
| 9 | | (a) Upon the filing of a petition for the appointment of a | 10 | | guardian or on
its own motion, the court may appoint a guardian | 11 | | of the estate or of both the
person and estate, of a minor, or | 12 | | may appoint a guardian of the person only of
a minor or minors, | 13 | | as the court finds to be in the best interest of the minor
or | 14 | | minors.
| 15 | | (a-1) A parent, adoptive parent or adjudicated parent, | 16 | | whose parental rights
have not been terminated, may designate | 17 | | in any writing, including a will, a
person qualified to act | 18 | | under Section 11-3 to be appointed as guardian of
the person or | 19 | | estate, or both, of an unmarried minor or of a child likely to | 20 | | be
born. A parent, adoptive parent or adjudicated parent, whose | 21 | | parental rights
have not been terminated, or a guardian or a | 22 | | standby guardian of an unmarried
minor or of a child likely to | 23 | | be born may designate in any writing, including a
will, a |
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| 1 | | person qualified to act under Section 11-3 to be appointed as | 2 | | successor
guardian of the minor's person or estate, or both. | 3 | | The designation must be
witnessed by 2 or more credible | 4 | | witnesses at least 18 years of age, neither of
whom is the | 5 | | person designated as the guardian. The designation may be | 6 | | proved
by any competent evidence. If the designation is | 7 | | executed and attested in the
same manner as a will, it shall | 8 | | have prima facie validity. The designation of a
guardian or | 9 | | successor guardian does not affect the rights of the other | 10 | | parent
in the minor.
| 11 | | (b) The court lacks jurisdiction to proceed on a petition | 12 | | for the
appointment of a guardian of a minor if it finds that | 13 | | (i) the minor has a living parent,
adoptive parent or | 14 | | adjudicated parent, whose parental rights have not been
| 15 | | terminated, whose whereabouts are known, and who is willing and | 16 | | able to make
and carry out day-to-day child care decisions | 17 | | concerning the minor, unless: (1) the
parent or parents | 18 | | voluntarily relinquished physical custody of the minor; (2) | 19 | | after receiving notice of the
hearing under Section 11-10.1, | 20 | | the parent or parents fail to object to the appointment at the
| 21 | | hearing on the petition; or (3) the parent or parents consent | 22 | | to the appointment as evidenced by a written document that has | 23 | | been notarized and dated, or by a personal appearance and | 24 | | consent in open court; or (ii) there is a guardian for the | 25 | | minor appointed by
a court of competent jurisdiction ; or (iii) | 26 | | there is a short-term guardian appointed under this subsection |
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| 1 | | (b) who is fit, willing, and able to care for the minor . There | 2 | | shall be a rebuttable presumption
that a parent of a minor is | 3 | | willing and able to make and carry out
day-to-day child care | 4 | | decisions concerning the minor, but the presumption may
be | 5 | | rebutted by a preponderance of the evidence. When the | 6 | | petitioner is not the short-term guardian of the minor, there | 7 | | shall be a rebuttable presumption that a short-term guardian of | 8 | | a minor is fit, willing, and able to care for the minor, and | 9 | | the petitioner shall have the burden of proving by a | 10 | | preponderance of evidence that the short-term guardian is not | 11 | | fit, willing, or able to care for the minor or that the | 12 | | short-term guardianship has been vacated under subsection | 13 | | (e-5) of Section 11-5.4.
| 14 | | (b-1) If the court finds the appointment of a guardian of | 15 | | the minor to be
in the best interest of the minor, and if a | 16 | | standby guardian has previously
been appointed for the minor | 17 | | under Section 11-5.3, the court shall appoint the
standby | 18 | | guardian as the guardian of the person or estate, or both, of | 19 | | the minor
unless the court finds, upon good cause shown, that | 20 | | the appointment would no
longer be in the best interest of the | 21 | | minor.
| 22 | | (c) If the minor is 14 years of age or more, the minor may | 23 | | nominate the
guardian of the minor's person and estate, subject | 24 | | to approval of the court. If
the minor's nominee is not | 25 | | approved by the court or if, after notice to the minor, the | 26 | | minor fails to nominate a
guardian of the minor's person or |
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| 1 | | estate, the court may appoint the guardian
without nomination.
| 2 | | (d) The court shall not appoint as guardian of the person | 3 | | of the minor any
person whom the court has determined had | 4 | | caused or substantially contributed to
the minor becoming a | 5 | | neglected or abused minor as defined in the Juvenile Court
Act | 6 | | of 1987 , unless 2 years have elapsed since the last proven | 7 | | incident of abuse
or neglect and the court determines that | 8 | | appointment of such person as guardian
is in the best interests | 9 | | of the minor.
| 10 | | (e) Previous statements made by the minor relating to any | 11 | | allegations
that the minor is an abused or neglected child | 12 | | within the meaning of the
Abused and Neglected Child Reporting | 13 | | Act, or an abused or neglected minor
within the meaning of the | 14 | | Juvenile Court Act of 1987, shall be admissible
in evidence in | 15 | | a hearing concerning appointment of a guardian of the person
or | 16 | | estate of the minor. No such statement, however, if | 17 | | uncorroborated and
not subject to cross-examination, shall be | 18 | | sufficient in itself to support
a finding of abuse or neglect.
| 19 | | (Source: P.A. 96-1338, eff. 1-1-11.)
| 20 | | (755 ILCS 5/11-5.4)
| 21 | | Sec. 11-5.4. Short-term guardian.
| 22 | | (a) A parent, adoptive parent, or adjudicated parent whose | 23 | | parental
rights
have not been terminated,
or the guardian of | 24 | | the person of a minor
may appoint in writing, without court | 25 | | approval, a
short-term guardian of an unmarried minor or a |
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| 1 | | child likely to be born. The
written instrument appointing a | 2 | | short-term guardian shall be dated and shall
identify the | 3 | | appointing parent
or guardian,
the minor, and the person | 4 | | appointed to be the
short-term guardian. The written instrument | 5 | | shall be signed by, or at the
direction of, the appointing | 6 | | parent in the presence of at least 2 credible
witnesses at | 7 | | least 18 years of age, neither of whom is the person appointed | 8 | | as
the short-term guardian. The person appointed as the | 9 | | short-term guardian shall
also sign the written instrument, but | 10 | | need not sign at the same time as the
appointing parent.
| 11 | | (b) A parent or guardian shall not appoint a short-term | 12 | | guardian of a
minor if the
minor has another living parent, | 13 | | adoptive parent or adjudicated parent, whose
parental rights | 14 | | have not been terminated, whose whereabouts are known, and who
| 15 | | is willing and able to make and carry out day-to-day child care | 16 | | decisions
concerning the minor, unless the nonappointing | 17 | | parent consents to the
appointment by signing the written | 18 | | instrument of appointment.
| 19 | | (c) The appointment of the short-term guardian is effective | 20 | | immediately upon
the date the written instrument is executed, | 21 | | unless the written instrument
provides for the appointment to | 22 | | become effective upon a later specified date or
event. Except | 23 | | as provided in subsection (e-5) of this Section, the short-term | 24 | | guardian shall have authority to act as guardian of the
minor | 25 | | as provided in Section 11-13.2 for a period of 365 days
from | 26 | | the date the appointment is effective, unless the written |
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| 1 | | instrument
provides for the appointment to terminate upon an | 2 | | earlier specified date or
event. Only one written instrument | 3 | | appointing a short-term guardian may be in
force at any given | 4 | | time.
| 5 | | (d) Every appointment of a short-term guardian may be | 6 | | amended or revoked by
the appointing parent or by the | 7 | | appointing guardian of the person of the
minor
at any time and | 8 | | in any manner communicated to the
short-term guardian or to any | 9 | | other person. Any person other than the
short-term guardian to | 10 | | whom a revocation or amendment is communicated or
delivered | 11 | | shall make all reasonable efforts to inform the short-term | 12 | | guardian
of that fact as promptly as possible.
| 13 | | (e) The appointment of a short-term guardian or successor | 14 | | short-term
guardian does not affect the rights of the other | 15 | | parent in the minor. The short-term guardian appointment does | 16 | | not constitute consent for court appointment of a guardian.
| 17 | | (e-5) Any time after the appointment of a temporary | 18 | | custodian under Section 2-10, 3-12, 4-9, 5-410, or 5-501 of the | 19 | | Juvenile Court Act of 1987, and after notice to all parties, | 20 | | including the short-term guardian, as required by the Juvenile | 21 | | Court Act of 1987, a court may vacate any short-term | 22 | | guardianship for the minor appointed under this Section, | 23 | | provided the vacation is consistent with the minor's best | 24 | | interests as determined using the factors listed in paragraph | 25 | | (4.05) of Section 1-3 of the Juvenile Court Act of 1987. | 26 | | (f) The written instrument appointing a short-term |
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| 1 | | guardian may, but need
not, be in the following form:
| 2 | | APPOINTMENT OF SHORT-TERM GUARDIAN
| 3 | | [IT IS IMPORTANT TO READ THE FOLLOWING INSTRUCTIONS:
| 4 | | By properly completing this form, a parent or the guardian
| 5 | | of the person of the child is appointing a guardian of
a child | 6 | | of the parent
(or a minor ward of the guardian, as the case may | 7 | | be)
for a period of up to 365 days. A separate form should be
| 8 | | completed for each child. The person appointed as
the guardian | 9 | | must sign the form, but need not do so at the same time as the
| 10 | | parent or parents or guardian.
| 11 | | This form may not be used to appoint a guardian if there is | 12 | | a guardian
already appointed for the child, except that if
a | 13 | | guardian of the person of the child has
been appointed, that | 14 | | guardian may use this form to appoint a
short-term guardian.
| 15 | | Both living parents of a child may together
appoint a guardian | 16 | | of the child, or the
guardian of the person of the child may
| 17 | | appoint a guardian of the child,
for a period
of up to 365 days | 18 | | through the use
of this form.
If the short-term guardian is | 19 | | appointed by both living parents of the
child,
the parents need | 20 | | not sign the form at the same time.]
| 21 | | 1. Parent
(or guardian)
and Child. I, (insert name of | 22 | | appointing parent
or guardian), currently
residing at | 23 | | (insert address of appointing parent
or guardian), am a | 24 | | parent
(or the guardian of the
person)
of
the following
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| 1 | | child (or of a child likely to be born): (insert name and | 2 | | date of birth of
child, or insert the words "not yet born" | 3 | | to appoint a short-term guardian for
a child likely to be | 4 | | born and the child's expected date of birth).
| 5 | | 2. Guardian. I hereby appoint the following person as | 6 | | the short-term
guardian for the child: (insert name and | 7 | | address of appointed
person).
| 8 | | 3. Effective date. This appointment becomes effective: | 9 | | (check one if you
wish it to be applicable)
| 10 | | ( ) On the date that I state in writing that I am | 11 | | no longer either
willing or able to make and carry out | 12 | | day-to-day child care decisions
concerning the child.
| 13 | | ( ) On the date that a physician familiar with my | 14 | | condition certifies
in writing that I am no longer | 15 | | willing or able to make and carry out day-to-day
child | 16 | | care decisions concerning the child.
| 17 | | ( ) On the date that I am admitted as an in-patient | 18 | | to a hospital or
other health care institution.
| 19 | | ( ) On the following date: (insert date).
| 20 | | ( ) Other: (insert other).
| 21 | | [NOTE: If this item is not completed, the appointment is | 22 | | effective
immediately upon the date the form is signed and | 23 | | dated below.]
| 24 | | 4. Termination. This appointment shall terminate 365 | 25 | | days after the
effective date, unless it terminates sooner | 26 | | as determined by the event or date
I have indicated below: |
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| 1 | | (check one if you wish it to be applicable)
| 2 | | ( ) On the date that I state in writing that I am | 3 | | willing and able to
make and carry out day-to-day child | 4 | | care decisions concerning the
child.
| 5 | | ( ) On the date that a physician familiar with my | 6 | | condition certifies
in writing that I am willing and | 7 | | able to make and carry out day-to-day child
care | 8 | | decisions concerning the child.
| 9 | | ( ) On the date that I am discharged from the | 10 | | hospital or other health
care institution where I was | 11 | | admitted as an in-patient, which established the
| 12 | | effective date.
| 13 | | ( ) On the date which is (state a number of days, | 14 | | but no more than 365
days) days after the effective | 15 | | date.
| 16 | | ( ) Other: (insert other).
| 17 | | [NOTE: If this item is not completed, the appointment will be | 18 | | effective for a
period of 365 days, beginning on the effective | 19 | | date.]
| 20 | | 5. Date and signature of appointing parent
or guardian. | 21 | | This
appointment is made
this (insert day) day of (insert | 22 | | month and year).
| 23 | | Signed: (appointing parent)
| 24 | | 6. Witnesses. I saw the parent
(or the guardian of the
| 25 | | person of the child)
sign this instrument or I saw the | 26 | | parent
(or the guardian of the
person of the child) direct
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| 1 | | someone to sign this instrument for the parent
(or the | 2 | | guardian). Then I
signed this
instrument as a witness in | 3 | | the presence of the parent (or the
guardian). I am not | 4 | | appointed in
this instrument to act as the short-term | 5 | | guardian for the child.
(Insert space for names, addresses, | 6 | | and signatures of 2 witnesses)
| 7 | | 7. Acceptance of short-term guardian. I accept this | 8 | | appointment as
short-term guardian on this (insert day) day | 9 | | of (insert month and year).
| 10 | | Signed: (short-term guardian)
| 11 | | 8. Consent of child's other parent. I, (insert name of | 12 | | the child's other
living parent), currently residing at | 13 | | (insert address of child's other living
parent), hereby | 14 | | consent to this appointment on this (insert day) day of
| 15 | | (insert month and year).
| 16 | | Signed: (consenting parent)
| 17 | | [NOTE: The signature of a consenting parent is not necessary if | 18 | | one of the
following applies: (i) the child's other parent has | 19 | | died; or (ii) the
whereabouts of the child's other parent are | 20 | | not known; or (iii) the child's
other parent is not willing or | 21 | | able to make and carry out day-to-day child care
decisions | 22 | | concerning the child; or (iv) the child's parents were never | 23 | | married
and no court has issued an order establishing | 24 | | parentage.]
| 25 | | (Source: P.A. 98-568, eff. 1-1-14.)
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| 1 | | (755 ILCS 5/11-8) (from Ch. 110 1/2, par. 11-8)
| 2 | | Sec. 11-8. Petition for guardian of minor.
| 3 | | (a) The petition for appointment of a
guardian of the | 4 | | estate, or of both the person and estate, of a minor, or for
| 5 | | appointment of the guardian of the person only of a minor or | 6 | | minors must state,
if known:
(1) the name, date of birth and | 7 | | residence of the minor; (2) the names and
post office addresses | 8 | | of the nearest relatives of the minor in the following
order: | 9 | | (i) the spouse, if any; if none, (ii) the
parents , and adult | 10 | | brothers and
sisters, and the short-term guardian, if any; if | 11 | | none, (iii) the nearest adult kindred; (3) the name
and post | 12 | | office address of the person having the custody of the minor; | 13 | | (4)
the approximate value of the personal estate; (5) the | 14 | | amount of the
anticipated
gross annual income and other | 15 | | receipts; (6) the name, post office
address
and, in case of an | 16 | | individual, the age and occupation of the proposed guardian;
| 17 | | (7) the facts concerning the execution or admission to probate | 18 | | of
the written
designation of the guardian, if any, a copy of | 19 | | which shall be attached to or
filed with the petition; and (8) | 20 | | the facts concerning any juvenile,
adoption,
parentage, | 21 | | dissolution, or guardianship court actions pending concerning | 22 | | the
minor or the parents of the minor and whether any guardian | 23 | | is currently acting
for the minor. In addition, if the petition | 24 | | seeks the appointment of a
previously appointed standby | 25 | | guardian as guardian of the minor, the petition
must also | 26 | | state: (9) the facts concerning the standby guardian's
previous
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| 1 | | appointment and (10) the date of death of the minor's parent or
| 2 | | parents or the
facts concerning the consent of the minor's | 3 | | parent or parents to the
appointment of the standby guardian as | 4 | | guardian, or the willingness and ability
of the minor's parent | 5 | | or parents to make and carry out day-to-day child care
| 6 | | decisions concerning the minor ;(11) if a short-term guardian | 7 | | appointed for the minor by the minor's parent or guardian | 8 | | petitions for guardianship, the short-term guardian shall also | 9 | | state the facts concerning the appointment of the short-term | 10 | | guardian including the circumstances surrounding the | 11 | | appointment, the length of the appointment, and the reasons why | 12 | | a court-ordered guardian is needed for the minor. A copy of the | 13 | | short-term guardianship appointment shall be attached to the | 14 | | petition .
| 15 | | (b) A single petition for appointment of only a guardian of | 16 | | the person of
a minor may include more than one minor. The | 17 | | statements required in items (1)
and (2) of subsection (a) | 18 | | shall be listed separately for each minor.
| 19 | | (Source: P.A. 90-796, eff. 12-15-98.)
| 20 | | (755 ILCS 5/11-8.1)
| 21 | | Sec. 11-8.1. Petition for standby guardian of minor. The | 22 | | petition for
appointment of a standby guardian of the person or | 23 | | the estate, or both, of a
minor must state, if known: (a) the | 24 | | name, date of birth, and residence of the
minor; (b) the names | 25 | | and post office addresses of the nearest relatives of the
minor |
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| 1 | | in the following order: (1) the parents, if any; if none, (2) | 2 | | the adult
brothers and sisters, if any; if none, (3) the | 3 | | nearest adult kindred; (4) the short-term guardian, if any; (c) | 4 | | the
name and post office address of the person having custody | 5 | | of the minor; (d) the
name, post office address, and, in case | 6 | | of any individual, the age and
occupation of the proposed | 7 | | standby guardian; (e) the facts concerning the
consent of the | 8 | | minor's parent or parents or the guardian of
the person of the | 9 | | minor
to the appointment of the standby
guardian, or the | 10 | | willingness and ability of the minor's parent or parents, if
| 11 | | any,
or the guardian of the person of the minor
to make and | 12 | | carry out day-to-day child care decisions concerning the
minor; | 13 | | (f) the facts concerning the execution or admission to probate | 14 | | of the
written designation of the standby guardian, if any, a | 15 | | copy of which shall be
attached to or filed with the petition; | 16 | | and (g) the facts concerning any
juvenile, adoption, parentage, | 17 | | dissolution, or guardianship court actions
pending concerning | 18 | | the minor or the parents of the minor and whether any
guardian | 19 | | is currently acting for the minor ; (h) if a short-term guardian | 20 | | has been appointed for the minor by the minor's parent or | 21 | | guardian, the petition shall state the facts concerning the | 22 | | appointment of the short-term guardian, including the | 23 | | circumstances surrounding the appointment, the length of the | 24 | | appointment, and the reasons why a court-ordered guardian is | 25 | | also needed for the minor. A copy of the short-term | 26 | | guardianship appointment shall be attached to the petition .
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| 1 | | (Source: P.A. 90-796, eff. 12-15-98.)
| 2 | | (755 ILCS 5/11-10.1) (from Ch. 110 1/2, par. 11-10.1)
| 3 | | Sec. 11-10.1.
Procedure for appointment of a standby | 4 | | guardian or a guardian
of a minor.
| 5 | | (a) Unless excused by the court for good cause shown, it is | 6 | | the duty of the
petitioner to give notice of the time and place | 7 | | of the hearing on the petition,
in person or by mail, to the | 8 | | minor, if the minor is 14 years, or older, and to
the relatives | 9 | | and the short-term guardian of the minor whose names and | 10 | | addresses are stated in the
petition, not less than 3 days | 11 | | before the hearing, but failure to give notice
to any relative | 12 | | is not jurisdictional.
| 13 | | (b) In any proceeding for the appointment of a standby | 14 | | guardian or a
guardian the court may appoint a guardian ad | 15 | | litem to represent the minor in
the proceeding.
| 16 | | (Source: P.A. 88-529.)
| 17 | | (755 ILCS 5/11-13) (from Ch. 110 1/2, par. 11-13)
| 18 | | Sec. 11-13. Duties of guardian of a minor. Before a | 19 | | guardian of a
minor may act, the guardian shall be appointed by | 20 | | the court of the proper
county and, in the case of a guardian | 21 | | of the minor's estate, the guardian shall
give the bond | 22 | | prescribed in Section 12-2. Except as provided in Section
| 23 | | 11-13.1 and Section 11-13.2 with respect to the standby or | 24 | | short-term guardian
of the person of a minor, the court shall |
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| 1 | | have control over the person and
estate of the ward. Under the | 2 | | direction of the court:
| 3 | | (a) The guardian of the person shall have the custody, | 4 | | nurture and tuition
and shall provide education of the ward and | 5 | | of his children, but the ward's
spouse may not be deprived of | 6 | | the custody and education of the spouse's
children, without | 7 | | consent of the spouse, unless the court finds that the
spouse | 8 | | is not a fit and competent person to have such custody and | 9 | | education.
If the ward's estate is insufficient to provide for | 10 | | the ward's education
and the guardian of his person fails to | 11 | | provide education, the court may
award the custody of the ward | 12 | | to some other person for the purpose of providing
education. If | 13 | | a person makes a settlement upon or provision for the support
| 14 | | or education of a ward and if either parent of the ward is | 15 | | dead, the court
may make such order for the visitation of the | 16 | | ward by the person making
the settlement or provision as the | 17 | | court deems proper. The guardian of the minor shall inform the | 18 | | court of the minor's current address by certified mail within | 19 | | 30 days of any change of residence.
| 20 | | (b) The guardian or other representative of the ward's | 21 | | estate shall have
the care, management and investment of the | 22 | | estate, shall manage the estate
frugally and shall apply the | 23 | | income and principal of the estate so far as
necessary for the | 24 | | comfort and suitable support and education of the ward,
his | 25 | | children, and persons related by blood or marriage who are | 26 | | dependent
upon or entitled to support from him, or for any |
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| 1 | | other purpose which the
court deems to be for the best | 2 | | interests of the ward, and the court may
approve the making on | 3 | | behalf of the ward of such agreements as the court
determines | 4 | | to be for the ward's best interests. The representative may
| 5 | | make disbursement of his ward's funds and estate directly to | 6 | | the ward or
other distributee or in such other manner and in | 7 | | such amounts as the court
directs. If the estate of a ward is | 8 | | derived in whole or in part from payments
of compensation, | 9 | | adjusted compensation, pension, insurance or other similar
| 10 | | benefits made directly to the estate by the Veterans | 11 | | Administration, notice of
the application for leave to invest | 12 | | or expend the ward's funds or estate,
together with a copy of | 13 | | the petition and proposed order, shall be given to the
| 14 | | Veterans' Administration Regional Office in this State at least | 15 | | 7 days before
the hearing on the application.
The court, upon | 16 | | petition of a guardian of the estate of a minor,
may permit the
| 17 | | guardian to make a will or create a revocable or irrevocable | 18 | | trust for the
minor that the court considers appropriate in | 19 | | light of changes in applicable
tax
laws that allow for | 20 | | minimization of State or federal income, estate, or
inheritance | 21 | | taxes; however, the will or trust
must make distributions only | 22 | | to the persons who would be entitled to
distributions if the | 23 | | minor were to die intestate and the will or trust must
make | 24 | | distributions to those persons in the same amounts to which | 25 | | they
would be entitled if the minor were to die intestate.
| 26 | | (c) Upon the direction of the court which issued his |
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| 1 | | letters a
representative may perform the contracts of his ward | 2 | | which were legally
subsisting at the time of the commencement | 3 | | of the guardianship. The court may
authorize the guardian to | 4 | | execute and deliver any bill of sale, deed or other
instrument.
| 5 | | (d) The representative of the estate of a ward shall appear | 6 | | for and
represent the ward in all legal proceedings unless | 7 | | another person is appointed
for that purpose as representative | 8 | | or next friend. This does not impair the
power of any court to | 9 | | appoint a representative or next friend to defend the
interests | 10 | | of the ward in that court, or to appoint or allow any person as | 11 | | the
next friend of a ward to commence, prosecute or defend any | 12 | | proceeding in his
behalf. Any proceeding on behalf of a minor | 13 | | may be commenced and prosecuted by
his next friend, without any | 14 | | previous authority or appointment by the court if
the next | 15 | | friend enters bond for costs and files it in the court where | 16 | | the
proceeding is pending.
Without impairing the power of the | 17 | | court in any respect, if the
representative of the estate of a | 18 | | minor and another person as next friend shall
appear for and | 19 | | represent the minor in a legal proceeding in which the
| 20 | | compensation of the attorney or attorneys representing the | 21 | | guardian and next
friend is solely determined under a | 22 | | contingent fee arrangement, the guardian of
the estate of the | 23 | | minor shall not participate in or have any duty to review the
| 24 | | prosecution of the action, to participate in or review the | 25 | | appropriateness of
any settlement of the action, or to | 26 | | participate in or review any determination
of the
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| 1 | | appropriateness of any fees awarded to the attorney or | 2 | | attorneys employed in
the prosecution of the action.
| 3 | | (e) Upon petition by any interested person (including the | 4 | | standby or
short-term guardian), with such notice to interested | 5 | | persons as the court
directs and a finding by the court that it | 6 | | is in the best interest of the
minor, the court may terminate | 7 | | or limit the authority of a standby or
short-term guardian or | 8 | | may enter such other orders as the court deems
necessary to | 9 | | provide for the best interest of the minor. The petition for
| 10 | | termination or limitation of the authority of a standby or | 11 | | short-term guardian
may, but need not, be combined with a | 12 | | petition to have a guardian appointed for
the minor.
| 13 | | (f) The guardian of a minor shall not remove the minor from | 14 | | the State without leave of the court, except for out-of-state | 15 | | travel of 30 days or less. A guardian may petition the court | 16 | | for removal of the minor. Upon petition by a guardian for | 17 | | removal of the minor with proper notice given, the court shall | 18 | | hold a hearing to determine whether the removal is in the best | 19 | | interest of the minor, and shall consider the wishes of the | 20 | | minor's parent or parents and the effect of removal on | 21 | | visitation, and the wishes of the minor, if the minor is 14 | 22 | | years of age or older. The burden of proving that the removal | 23 | | is in the best interest of the minor is on the guardian. | 24 | | (Source: P.A. 90-345, eff. 8-8-97; 91-149, eff. 1-1-00.)
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