SB1387 101ST GENERAL ASSEMBLY

  
  

 


 
101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
SB1387

 

Introduced 2/13/2019, by Sen. Julie A. Morrison

 

SYNOPSIS AS INTRODUCED:
 
15 ILCS 505/16.6
755 ILCS 5/11-13  from Ch. 110 1/2, par. 11-13
755 ILCS 5/11a-17  from Ch. 110 1/2, par. 11a-17
755 ILCS 5/11a-18  from Ch. 110 1/2, par. 11a-18

    Amends the State Treasurer Act. Modifies and reorganizes provisions concerning the ABLE account program. Provides that a designated representative under the program includes, among other persons, the account owner's guardian of the person or any other State-appointed guardian. Provides that the State Treasurer may enter into agreements with other states to either allow Illinois residents to participate in a plan operated by another state or to allow residents of other states to participate in the Illinois ABLE plan. Modifies terms under the Act. Amends the Probate Act of 1975. Modifies provisions concerning duties of a guardian of a minor, duties of a personal guardian, and duties of an estate guardian to allow a specified guardian to, without an order of court, open, maintain, and transfer funds to an ABLE account on behalf of the ward and the ward's dependent children as specified under the ABLE account program. Makes conforming and other changes. Effective immediately.


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FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

SB1387LRB101 08069 JRG 53132 b

1    AN ACT concerning State government.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The State Treasurer Act is amended by changing
5Section 16.6 as follows:
 
6    (15 ILCS 505/16.6)
7    Sec. 16.6. ABLE account program.
8    (a) As used in this Section:
9    "ABLE account" or "account" means an account established
10for the purpose of financing certain qualified expenses of
11eligible individuals as specifically provided for in this
12Section and authorized by Section 529A of the Internal Revenue
13Code.
14    "ABLE account plan" or "plan" means the savings account
15plan provided for in this Section.
16    "Account administrator" means the person or entity
17selected by the State Treasurer to administer the daily
18operations of the ABLE account plan and provide marketing,
19recordkeeping, investment management, and other services for
20the plan.
21    "Aggregate account balance" means the amount in an account
22on a particular date or the fair market value of an account on
23a particular date.

 

 

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1    "Beneficiary" means the ABLE account owner.
2    "Board" means the Illinois State Board of Investment.
3    "Contracting state" means a state without a qualified ABLE
4program which has entered into a contract with Illinois to
5provide residents of the contracting state access to a
6qualified ABLE program.
7    "Designated representative" means a person who is
8authorized to act on behalf of an account owner. An account
9owner is authorized to act on his or her own behalf unless the
10account owner is a minor or the account owner has been
11adjudicated to have a disability so that a guardian has been
12appointed. A designated representative acts in a fiduciary
13capacity to the account owner. The State Treasurer shall
14recognize the following a person as a designated representative
15without appointment by a court in the following order of
16priority:
17        (1) The account owner's guardian of the person, plenary
18    guardian of the estate, or the account owner's limited
19    guardian of financial or contractual matters, or any other
20    State-appointed guardian. A Any guardian acting in this
21    capacity shall not be required to seek court approval for
22    any ABLE account activity qualified distributions.
23        (2) The agent named by the account owner in a property
24    power of attorney recognized as a statutory short form
25    power of attorney for property.
26        (3) Such individual or entity that the account owner so

 

 

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1    designates in writing, in a manner to be established by the
2    State Treasurer.
3        (4) Such other individual or entity designated by the
4    State Treasurer pursuant to its rules.
5    "Disability certification" has the meaning given to that
6term under Section 529A of the Internal Revenue Code.
7    "Eligible individual" has the meaning given to that term
8under Section 529A of the Internal Revenue Code.
9    "Participation agreement" means an agreement to
10participate in the ABLE account plan between an account owner
11and the State, through its agencies and the State Treasurer.
12    "Qualified disability expenses" has the meaning given to
13that term under Section 529A of the Internal Revenue Code.
14    "Qualified withdrawal" or "qualified distribution" means a
15withdrawal from an ABLE account to pay the qualified disability
16expenses of the beneficiary of the account.
17    (b) Establishment of the ABLE Program. The "Achieving a
18Better Life Experience" or "ABLE" account program is hereby
19created and shall be administered by the State Treasurer. The
20purpose of the ABLE program plan is to encourage and assist
21individuals and families in saving private funds for the
22purpose of supporting individuals with disabilities to
23maintain health, independence, and quality of life, and to
24provide secure funding for disability-related expenses on
25behalf of designated beneficiaries with disabilities that will
26supplement, but not supplant, benefits provided through

 

 

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1private insurance, federal and State medical and disability
2insurance, the beneficiary's employment, and other sources.
3Under the plan, a person may make contributions to an ABLE
4account to meet the qualified disability expenses of the
5designated beneficiary of the account. The plan must be
6operated as an accounts-type plan that permits persons to save
7for qualified disability expenses incurred by or on behalf of
8an eligible individual.
9    (c) Promotion of the ABLE Program. The State Treasurer
10shall promote awareness of the availability and advantages of
11the ABLE account plan as a way to assist individuals and
12families in saving private funds for the purpose of supporting
13individuals with disabilities. The cost of these promotional
14efforts shall not be funded with fees imposed on participants
15by the State Treasurer.
16    The State Treasurer shall not accept contributions for ABLE
17accounts under this Section until the Internal Revenue Service
18has issued its final regulations or interim guidance concerning
19ABLE accounts.
20    A separate account must be maintained for each beneficiary
21for whom contributions are made, and no more than one account
22shall be established per beneficiary. If an ABLE account is
23established for a designated beneficiary, no account
24subsequently established for such beneficiary shall be treated
25as an ABLE account. The preceding sentence shall not apply in
26the case of an ABLE account established for purposes of a

 

 

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1rollover as permitted under Section 529A of the Internal
2Revenue Code.
3    (d) Availability of the ABLE Program. An ABLE account may
4be established under this Section for a designated beneficiary
5who is a resident of Illinois, a resident of a contracting
6state, or a resident of any other state.
7    Prior to the establishment of an ABLE account, an account
8owner must provide documentation to the State Treasurer that
9the account beneficiary is an eligible individual.
10    Annual contributions to an ABLE account on behalf of a
11beneficiary are subject to the requirements of subsection (b)
12of Section 529A of the Internal Revenue Code. No person may
13make a contribution to an ABLE account if such a contribution
14would result in the aggregate account balance of an ABLE
15account exceeding the account balance limit authorized under
16Section 529A of the Internal Revenue Code. The Treasurer shall
17review the contribution limit at least annually. A separate
18account must be maintained for each beneficiary for whom
19contributions are made, and no more than one account shall be
20established per beneficiary. If an ABLE account is established
21for a designated beneficiary, no account subsequently
22established for such beneficiary shall be treated as an ABLE
23account. The preceding sentence shall not apply in the case of
24an ABLE account established for purposes of a rollover as
25permitted under Sections 529 and 529A of the Internal Revenue
26Code.

 

 

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1    (e) Administration of the ABLE Program. The State Treasurer
2shall administer the plan, including accepting and processing
3applications, maintaining account records, making payments,
4and undertaking any other necessary tasks to administer the
5plan, including the appointment of an account administrator.
6The State Treasurer may contract with one or more third parties
7to carry out some or all of these administrative duties,
8including, but not limited to, providing investment management
9services, incentives, and marketing the plan. The State
10Treasurer may enter into agreements with other states to either
11allow Illinois residents to participate in a plan operated by
12another state or to allow residents of other states to
13participate in the Illinois ABLE plan.
14    (f) Fees. In designing and establishing the plan's
15requirements and in negotiating or entering into contracts with
16third parties under this Section, the State Treasurer shall
17consult with the Board. The State Treasurer may shall establish
18fees to be imposed on participants to cover recover the costs
19of administration, recordkeeping, and investment management.
20The State Treasurer must use his or her best efforts to keep
21these fees as low as possible, consistent with efficient
22administration.
23    (g) The Illinois ABLE Accounts Administrative Fund. The
24Illinois ABLE Accounts Administrative Fund is created as a
25nonappropriated trust fund in the State treasury. The State
26Treasurer shall use moneys in the Administrative Fund to pay

 

 

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1for administrative expenses he or she incurs in the performance
2of his or her duties under this Section. The State Treasurer
3shall use moneys in the Administrative Fund to cover
4administrative expenses incurred under this Section. The
5Administrative Fund may receive any grants or other moneys
6designated for administrative purposes from the State, or any
7unit of federal, state, or local government, or any other
8person, firm, partnership, or corporation. Any interest
9earnings that are attributable to moneys in the Administrative
10Fund must be deposited into the Administrative Fund. Any fees
11established by the State Treasurer to cover recover the costs
12of administration, recordkeeping, and investment management
13shall be deposited into the Administrative Fund.
14    Subject to appropriation, the State Treasurer may pay
15administrative costs associated with the creation and
16management of the plan until sufficient assets are available in
17the Administrative Fund for that purpose.
18    (h) Privacy. Applications for accounts, account owner
19data, account data, and data on beneficiaries of accounts are
20confidential and exempt from disclosure under the Freedom of
21Information Act.
22    (c) The State Treasurer may invest the moneys in ABLE
23accounts in the same manner and in the same types of
24investments provided for the investment of moneys by the Board.
25To enhance the safety and liquidity of ABLE accounts, to ensure
26the diversification of the investment portfolio of accounts,

 

 

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1and in an effort to keep investment dollars in the State, the
2State Treasurer may make a percentage of each account available
3for investment in participating financial institutions doing
4business in the State, except that the accounts may be invested
5without limit in investment options from open-ended investment
6companies registered under Section 80a of the federal
7Investment Company Act of 1940. The State Treasurer may
8contract with one or more third parties for investment
9management, recordkeeping, or other services in connection
10with investing the accounts.
11    (i) Investment Policy. The Treasurer account administrator
12shall annually prepare and adopt a written statement of
13investment policy that includes a risk management and oversight
14program which shall be reviewed annually and posted on the
15Treasurer's website prior to implementation. The risk
16management and oversight program shall be designed to ensure
17that an effective risk management system is in place to monitor
18the risk levels of the ABLE plan, to ensure that the risks
19taken are prudent and properly managed, to provide an
20integrated process for overall risk management, and to assess
21investment returns as well as risk to determine if the risks
22taken are adequately compensated compared to applicable
23performance benchmarks and standards. To enhance the safety and
24liquidity of ABLE accounts, to ensure the diversification of
25the investment portfolio of accounts, and in an effort to keep
26investment dollars in the State, the State Treasurer may make a

 

 

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1percentage of each account available for investment in
2participating financial institutions doing business in the
3State, except that the accounts may be invested without limit
4in investment options from open-ended investment companies
5registered under Section 80a of the federal Investment Company
6Act of 1940. The State Treasurer may contract with one or more
7third parties for investment management, recordkeeping, or
8other services in connection with investing the accounts.
9    The State Treasurer may enter into agreements with other
10states to either allow Illinois residents to participate in a
11plan operated by another state or to allow residents of other
12states to participate in the Illinois ABLE plan.
13    (j) Investment restrictions. (d) The State Treasurer shall
14ensure that the plan meets the requirements for an ABLE account
15under Section 529A of the Internal Revenue Code. The State
16Treasurer may request a private letter ruling or rulings from
17the Internal Revenue Service and must take any necessary steps
18to ensure that the plan qualifies under relevant provisions of
19federal law. Notwithstanding the foregoing, any determination
20by the Secretary of the Treasury of the United States that an
21account was utilized to make non-qualified distributions shall
22not result in an ABLE account being disregarded as a resource.
23    (k) Contributions. A person may make contributions to an
24ABLE account on behalf of a beneficiary. Contributions to an
25account made by persons other than the account owner become the
26property of the account owner. Contributions to an account

 

 

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1shall be considered as a transfer of assets for fair market
2value. A person does not acquire an interest in an ABLE account
3by making contributions to an account. A contribution to any
4account for a beneficiary must be rejected if the contribution
5would cause either the aggregate or annual account balance of
6the account to exceed the limits imposed by Section 529A of the
7Internal Revenue Code.
8    Any change in account owner must be done in a manner
9consistent with Section 529A of the Internal Revenue Code.
10    (l) Notice. Notice of any proposed amendments to the rules
11and regulations shall be provided to all owners or their
12designated representatives prior to adoption. Amendments to
13rules and regulations shall apply only to contributions made
14after the adoption of the amendment. Amendments to this Section
15automatically amend the participation agreement. Any
16amendments to the operating procedures and policies of the plan
17shall automatically amend the participation agreement after
18adoption by the State Treasurer.
19    (m) Plan assets. All assets of the plan, including any
20contributions to accounts, are held in trust for the exclusive
21benefit of the account owner and shall be considered
22spendthrift accounts exempt from all of the owner's creditors.
23The plan shall provide separate accounting for each designated
24beneficiary sufficient to satisfy the requirements of
25paragraph (3) of subsection (b) of Section 529A of the Internal
26Revenue Code. Assets must be held in either a state trust fund

 

 

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1outside the State treasury, to be known as the Illinois ABLE
2plan trust fund, or in accounts with a third-party provider
3selected pursuant to this Section. Amounts contributed to ABLE
4accounts shall not be commingled with State funds and the State
5shall have no claim to or against, or interest in, such funds.
6    Plan assets are not subject to claims by creditors of the
7State and are not subject to appropriation by the State.
8Payments from the Illinois ABLE account plan shall be made
9under this Section.
10    The assets of ABLE accounts and their income may not be
11used as security for a loan.
12    (n) Taxation. The assets of ABLE accounts and their income
13and operation shall be exempt from all taxation by the State of
14Illinois and any of its subdivisions to the extent exempt from
15federal income taxation. The accrued earnings on investments in
16an ABLE account once disbursed on behalf of a designated
17beneficiary shall be similarly exempt from all taxation by the
18State of Illinois and its subdivisions to the extent exempt
19from federal income taxation, so long as they are used for
20qualified expenses.
21    Notwithstanding any other provision of law that requires
22consideration of one or more financial circumstances of an
23individual, for the purpose of determining eligibility to
24receive, or the amount of, any assistance or benefit authorized
25by such provision to be provided to or for the benefit of such
26individual, any amount, including earnings thereon, in the ABLE

 

 

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1account of such individual, any contributions to the ABLE
2account of the individual, and any distribution for qualified
3disability expenses shall be disregarded for such purpose with
4respect to any period during which such individual maintains,
5makes contributions to, or receives distributions from such
6ABLE account.
7    (o) Distributions. (e) The account owner or the designated
8representative of the account owner may make request that a
9qualified distribution be made for the benefit of the account
10owner. Qualified distributions shall be made for qualified
11disability expenses allowed pursuant to Section 529A of the
12Internal Revenue Code. Qualified distributions must be
13withdrawn proportionally from contributions and earnings in an
14account owner's account on the date of distribution as provided
15in Section 529A of the Internal Revenue Code. Unless prohibited
16by federal law, upon the death of a designated beneficiary,
17proceeds from an account may be transferred to the estate of a
18designated beneficiary, or to an account for another eligible
19individual specified by the designated beneficiary or the
20estate of the designated beneficiary. An agency or
21instrumentality of the State may not seek payment under
22subsection (f) of Section 529A of the federal Internal Revenue
23Code from the account or its proceeds for benefits provided to
24a designated beneficiary.
25    (p) Rules. (f) The State Treasurer may adopt rules to carry
26out the purposes of this Section. The State Treasurer shall

 

 

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1further have the power to issue peremptory rules necessary to
2ensure that ABLE accounts meet all of the requirements for a
3qualified state ABLE program under Section 529A of the Internal
4Revenue Code and any regulations issued by the Internal Revenue
5Service.
6(Source: P.A. 99-145, eff. 1-1-16; 99-563, eff. 7-15-16;
7100-713, eff. 8-3-18.)
 
8    Section 10. The Probate Act of 1975 is amended by changing
9Sections 11-13, 11a-17, and 11a-18 as follows:
 
10    (755 ILCS 5/11-13)  (from Ch. 110 1/2, par. 11-13)
11    Sec. 11-13. Duties of guardian of a minor. Before a
12guardian of a minor may act, the guardian shall be appointed by
13the court of the proper county and, in the case of a guardian
14of the minor's estate, the guardian shall give the bond
15prescribed in Section 12-2. Except as provided in Section
1611-13.1 and Section 11-13.2 with respect to the standby or
17short-term guardian of the person of a minor, the court shall
18have control over the person and estate of the ward. Under the
19direction of the court:
20    (a) The guardian of the person shall have the custody,
21nurture and tuition and shall provide education of the ward and
22of his children, but the ward's spouse may not be deprived of
23the custody and education of the spouse's children, without
24consent of the spouse, unless the court finds that the spouse

 

 

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1is not a fit and competent person to have such custody and
2education. If the ward's estate is insufficient to provide for
3the ward's education and the guardian of his person fails to
4provide education, the court may award the custody of the ward
5to some other person for the purpose of providing education. If
6a person makes a settlement upon or provision for the support
7or education of a ward and if either parent of the ward is
8dead, the court may make such order for the visitation of the
9ward by the person making the settlement or provision as the
10court deems proper. The guardian of the minor shall inform the
11court of the minor's current address by certified mail, hand
12delivery, or other method in accordance with court rules within
1330 days of any change of residence.
14    (a-5) The guardian of estate, or the guardian of the person
15if a guardian of the estate has not been appointed, may,
16without an order of court, open, maintain, and transfer funds
17to an ABLE account on behalf of the ward to provide for the
18ward as specified under Section 16.6 of the State Treasurer
19Act.
20    (b) The guardian or other representative of the ward's
21estate shall have the care, management and investment of the
22estate, shall manage the estate frugally and shall apply the
23income and principal of the estate so far as necessary for the
24comfort and suitable support and education of the ward, his
25children, and persons related by blood or marriage who are
26dependent upon or entitled to support from him, or for any

 

 

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1other purpose which the court deems to be for the best
2interests of the ward, and the court may approve the making on
3behalf of the ward of such agreements as the court determines
4to be for the ward's best interests. The representative may
5make disbursement of his ward's funds and estate directly to
6the ward or other distributee or in such other manner and in
7such amounts as the court directs. If the estate of a ward is
8derived in whole or in part from payments of compensation,
9adjusted compensation, pension, insurance or other similar
10benefits made directly to the estate by the Veterans
11Administration, notice of the application for leave to invest
12or expend the ward's funds or estate, together with a copy of
13the petition and proposed order, shall be given to the
14Veterans' Administration Regional Office in this State at least
157 days before the hearing on the application. The court, upon
16petition of a guardian of the estate of a minor, may permit the
17guardian to make a will or create a revocable or irrevocable
18trust for the minor that the court considers appropriate in
19light of changes in applicable tax laws that allow for
20minimization of State or federal income, estate, or inheritance
21taxes; however, the will or trust must make distributions only
22to the persons who would be entitled to distributions if the
23minor were to die intestate and the will or trust must make
24distributions to those persons in the same amounts to which
25they 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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1letters a representative may perform the contracts of his ward
2which were legally subsisting at the time of the commencement
3of the guardianship. The court may authorize the guardian to
4execute and deliver any bill of sale, deed or other instrument.
5    (d) The representative of the estate of a ward shall appear
6for and represent the ward in all legal proceedings unless
7another person is appointed for that purpose as representative
8or next friend. This does not impair the power of any court to
9appoint a representative or next friend to defend the interests
10of the ward in that court, or to appoint or allow any person as
11the next friend of a ward to commence, prosecute or defend any
12proceeding in his behalf. Any proceeding on behalf of a minor
13may be commenced and prosecuted by his next friend, without any
14previous authority or appointment by the court if the next
15friend enters bond for costs and files it in the court where
16the proceeding is pending. Without impairing the power of the
17court in any respect, if the representative of the estate of a
18minor and another person as next friend shall appear for and
19represent the minor in a legal proceeding in which the
20compensation of the attorney or attorneys representing the
21guardian and next friend is solely determined under a
22contingent fee arrangement, the guardian of the estate of the
23minor shall not participate in or have any duty to review the
24prosecution of the action, to participate in or review the
25appropriateness of any settlement of the action, or to
26participate in or review any determination of the

 

 

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1appropriateness of any fees awarded to the attorney or
2attorneys employed in the prosecution of the action.
3    (e) Upon petition by any interested person (including the
4standby or short-term guardian), with such notice to interested
5persons as the court directs and a finding by the court that it
6is in the best interest of the minor, the court may terminate
7or limit the authority of a standby or short-term guardian or
8may enter such other orders as the court deems necessary to
9provide for the best interest of the minor. The petition for
10termination or limitation of the authority of a standby or
11short-term guardian may, but need not, be combined with a
12petition to have a guardian appointed for the minor.
13    (f) The court may grant leave to the guardian of a minor
14child or children to remove such child or children from
15Illinois whenever such approval is in the best interests of
16such child or children. The guardian may not remove a minor
17from Illinois except as permitted under this Section and must
18seek leave of the court prior to removing a child for 30 days
19or more. The burden of proving that such removal is in the best
20interests of such child or children is on the guardian. When
21such removal is permitted, the court may require the guardian
22removing such child or children from Illinois to give
23reasonable security guaranteeing the return of such children.
24    The court shall consider the wishes of the minor's parent
25or parents and the effect of removal on visitation and the
26wishes of the minor if he or she is 14 years of age or older.

 

 

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1The court may not consider the availability of electronic
2communication as a factor in support of the removal of a child
3by the guardian from Illinois. The guardianship order may
4incorporate language governing removal of the minor from the
5State. Any order for removal, including one incorporated into
6the guardianship order, must include the date of the removal,
7the reason for removal, and the proposed residential and
8mailing address of the minor after removal. A copy of the order
9must be provided to any parent whose location is known, within
103 days of entry, either by personal delivery or by certified
11mail, return receipt requested.
12    Before a minor child is temporarily removed from Illinois
13for more than 48 hours but less than 30 days, the guardian
14shall inform the parent or parents of the address and telephone
15number where the child may be reached during the period of
16temporary removal and the date on which the child shall return
17to Illinois. The State of Illinois retains jurisdiction when
18the minor child is absent from the State pursuant to this
19subsection. The guardianship order may incorporate language
20governing out-of-state travel with the minor.
21(Source: P.A. 98-1082, eff. 1-1-15; 99-207, eff. 7-30-15.)
 
22    (755 ILCS 5/11a-17)  (from Ch. 110 1/2, par. 11a-17)
23    Sec. 11a-17. Duties of personal guardian.
24    (a) To the extent ordered by the court and under the
25direction of the court, the guardian of the person shall have

 

 

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1custody of the ward and the ward's minor and adult dependent
2children and shall procure for them and shall make provision
3for their support, care, comfort, health, education and
4maintenance, and professional services as are appropriate, but
5the ward's spouse may not be deprived of the custody and
6education of the ward's minor and adult dependent children,
7without the consent of the spouse, unless the court finds that
8the spouse is not a fit and competent person to have that
9custody and education. The guardian shall assist the ward in
10the development of maximum self-reliance and independence. The
11guardian of the person may petition the court for an order
12directing the guardian of the estate to pay an amount
13periodically for the provision of the services specified by the
14court order. If the ward's estate is insufficient to provide
15for education and the guardian of the ward's person fails to
16provide education, the court may award the custody of the ward
17to some other person for the purpose of providing education. If
18a person makes a settlement upon or provision for the support
19or education of a ward, the court may make an order for the
20visitation of the ward by the person making the settlement or
21provision as the court deems proper. A guardian of the person
22may not admit a ward to a mental health facility except at the
23ward's request as provided in Article IV of the Mental Health
24and Developmental Disabilities Code and unless the ward has the
25capacity to consent to such admission as provided in Article IV
26of the Mental Health and Developmental Disabilities Code.

 

 

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1    (a-3) If a guardian of an estate has not been appointed,
2the guardian of the person may, without an order of court,
3open, maintain, and transfer funds to an ABLE account on behalf
4of the ward and the ward's minor and adult dependent children
5as specified under Section 16.6 of the State Treasurer Act.
6    (a-5) If the ward filed a petition for dissolution of
7marriage under the Illinois Marriage and Dissolution of
8Marriage Act before the ward was adjudicated a person with a
9disability under this Article, the guardian of the ward's
10person and estate may maintain that action for dissolution of
11marriage on behalf of the ward. Upon petition by the guardian
12of the ward's person or estate, the court may authorize and
13direct a guardian of the ward's person or estate to file a
14petition for dissolution of marriage or to file a petition for
15legal separation or declaration of invalidity of marriage under
16the Illinois Marriage and Dissolution of Marriage Act on behalf
17of the ward if the court finds by clear and convincing evidence
18that the relief sought is in the ward's best interests. In
19making its determination, the court shall consider the
20standards set forth in subsection (e) of this Section.
21    (a-10) Upon petition by the guardian of the ward's person
22or estate, the court may authorize and direct a guardian of the
23ward's person or estate to consent, on behalf of the ward, to
24the ward's marriage pursuant to Part II of the Illinois
25Marriage and Dissolution of Marriage Act if the court finds by
26clear and convincing evidence that the marriage is in the

 

 

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1ward's best interests. In making its determination, the court
2shall consider the standards set forth in subsection (e) of
3this Section. Upon presentation of a court order authorizing
4and directing a guardian of the ward's person and estate to
5consent to the ward's marriage, the county clerk shall accept
6the guardian's application, appearance, and signature on
7behalf of the ward for purposes of issuing a license to marry
8under Section 203 of the Illinois Marriage and Dissolution of
9Marriage Act.
10    (b) If the court directs, the guardian of the person shall
11file with the court at intervals indicated by the court, a
12report that shall state briefly: (1) the current mental,
13physical, and social condition of the ward and the ward's minor
14and adult dependent children; (2) their present living
15arrangement, and a description and the address of every
16residence where they lived during the reporting period and the
17length of stay at each place; (3) a summary of the medical,
18educational, vocational, and other professional services given
19to them; (4) a resume of the guardian's visits with and
20activities on behalf of the ward and the ward's minor and adult
21dependent children; (5) a recommendation as to the need for
22continued guardianship; (6) any other information requested by
23the court or useful in the opinion of the guardian. The Office
24of the State Guardian shall assist the guardian in filing the
25report when requested by the guardian. The court may take such
26action as it deems appropriate pursuant to the report.

 

 

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1    (c) Absent court order pursuant to the Illinois Power of
2Attorney Act directing a guardian to exercise powers of the
3principal under an agency that survives disability, the
4guardian has no power, duty, or liability with respect to any
5personal or health care matters covered by the agency. This
6subsection (c) applies to all agencies, whenever and wherever
7executed.
8    (d) A guardian acting as a surrogate decision maker under
9the Health Care Surrogate Act shall have all the rights of a
10surrogate under that Act without court order including the
11right to make medical treatment decisions such as decisions to
12forgo or withdraw life-sustaining treatment. Any decisions by
13the guardian to forgo or withdraw life-sustaining treatment
14that are not authorized under the Health Care Surrogate Act
15shall require a court order. Nothing in this Section shall
16prevent an agent acting under a power of attorney for health
17care from exercising his or her authority under the Illinois
18Power of Attorney Act without further court order, unless a
19court has acted under Section 2-10 of the Illinois Power of
20Attorney Act. If a guardian is also a health care agent for the
21ward under a valid power of attorney for health care, the
22guardian acting as agent may execute his or her authority under
23that act without further court order.
24    (e) Decisions made by a guardian on behalf of a ward shall
25be made in accordance with the following standards for decision
26making. Decisions made by a guardian on behalf of a ward may be

 

 

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1made by conforming as closely as possible to what the ward, if
2competent, would have done or intended under the circumstances,
3taking into account evidence that includes, but is not limited
4to, the ward's personal, philosophical, religious and moral
5beliefs, and ethical values relative to the decision to be made
6by the guardian. Where possible, the guardian shall determine
7how the ward would have made a decision based on the ward's
8previously expressed preferences, and make decisions in
9accordance with the preferences of the ward. If the ward's
10wishes are unknown and remain unknown after reasonable efforts
11to discern them, the decision shall be made on the basis of the
12ward's best interests as determined by the guardian. In
13determining the ward's best interests, the guardian shall weigh
14the reason for and nature of the proposed action, the benefit
15or necessity of the action, the possible risks and other
16consequences of the proposed action, and any available
17alternatives and their risks, consequences and benefits, and
18shall take into account any other information, including the
19views of family and friends, that the guardian believes the
20ward would have considered if able to act for herself or
21himself.
22    (f) Upon petition by any interested person (including the
23standby or short-term guardian), with such notice to interested
24persons as the court directs and a finding by the court that it
25is in the best interest of the person with a disability, the
26court may terminate or limit the authority of a standby or

 

 

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1short-term guardian or may enter such other orders as the court
2deems necessary to provide for the best interest of the person
3with a disability. The petition for termination or limitation
4of the authority of a standby or short-term guardian may, but
5need not, be combined with a petition to have another guardian
6appointed for the person with a disability.
7    (g)(1) Unless there is a court order to the contrary, the
8guardian, consistent with the standards set forth in subsection
9(e) of this Section, shall use reasonable efforts to notify the
10ward's known adult children, who have requested notification
11and provided contact information, of the ward's admission to a
12hospital or hospice program, the ward's death, and the
13arrangements for the disposition of the ward's remains.
14    (2) If a guardian unreasonably prevents an adult child,
15spouse, adult grandchild, parent, or adult sibling of the ward
16from visiting the ward, the court, upon a verified petition,
17may order the guardian to permit visitation between the ward
18and the adult child, spouse, adult grandchild, parent, or adult
19sibling. In making its determination, the court shall consider
20the standards set forth in subsection (e) of this Section. The
21court shall not allow visitation if the court finds that the
22ward has capacity to evaluate and communicate decisions
23regarding visitation and expresses a desire not to have
24visitation with the petitioner. This subsection (g) does not
25apply to duly appointed public guardians or the Office of State
26Guardian.

 

 

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1(Source: P.A. 99-143, eff. 7-27-15; 99-821, eff. 1-1-17;
2100-1054, eff. 1-1-19.)
 
3    (755 ILCS 5/11a-18)  (from Ch. 110 1/2, par. 11a-18)
4    Sec. 11a-18. Duties of the estate guardian.
5    (a) To the extent specified in the order establishing the
6guardianship, the guardian of the estate shall have the care,
7management and investment of the estate, shall manage the
8estate frugally and shall apply the income and principal of the
9estate so far as necessary for the comfort and suitable support
10and education of the ward, his minor and adult dependent
11children, and persons related by blood or marriage who are
12dependent upon or entitled to support from him, or for any
13other purpose which the court deems to be for the best
14interests of the ward, and the court may approve the making on
15behalf of the ward of such agreements as the court determines
16to be for the ward's best interests. The guardian may make
17disbursement of his ward's funds and estate directly to the
18ward or other distributee or in such other manner and in such
19amounts as the court directs. If the estate of a ward is
20derived in whole or in part from payments of compensation,
21adjusted compensation, pension, insurance or other similar
22benefits made directly to the estate by the Veterans
23Administration, notice of the application for leave to invest
24or expend the ward's funds or estate, together with a copy of
25the petition and proposed order, shall be given to the

 

 

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1Veterans' Administration Regional Office in this State at least
27 days before the hearing on the application.
3    (a-5) The probate court, upon petition of a guardian, other
4than the guardian of a minor, and after notice to all other
5persons interested as the court directs, may authorize the
6guardian to exercise any or all powers over the estate and
7business affairs of the ward that the ward could exercise if
8present and not under disability. The court may authorize the
9taking of an action or the application of funds not required
10for the ward's current and future maintenance and support in
11any manner approved by the court as being in keeping with the
12ward's wishes so far as they can be ascertained. The court must
13consider the permanence of the ward's disabling condition and
14the natural objects of the ward's bounty. In ascertaining and
15carrying out the ward's wishes the court may consider, but
16shall not be limited to, minimization of State or federal
17income, estate, or inheritance taxes; and providing gifts to
18charities, relatives, and friends that would be likely
19recipients of donations from the ward. The ward's wishes as
20best they can be ascertained shall be carried out, whether or
21not tax savings are involved. Actions or applications of funds
22may include, but shall not be limited to, the following:
23        (1) making gifts of income or principal, or both, of
24    the estate, either outright or in trust;
25        (2) conveying, releasing, or disclaiming his or her
26    contingent and expectant interests in property, including

 

 

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1    marital property rights and any right of survivorship
2    incident to joint tenancy or tenancy by the entirety;
3        (3) releasing or disclaiming his or her powers as
4    trustee, personal representative, custodian for minors, or
5    guardian;
6        (4) exercising, releasing, or disclaiming his or her
7    powers as donee of a power of appointment;
8        (5) entering into contracts;
9        (6) creating for the benefit of the ward or others,
10    revocable or irrevocable trusts of his or her property that
11    may extend beyond his or her disability or life;
12        (7) exercising options of the ward to purchase or
13    exchange securities or other property;
14        (8) exercising the rights of the ward to elect benefit
15    or payment options, to terminate, to change beneficiaries
16    or ownership, to assign rights, to borrow, or to receive
17    cash value in return for a surrender of rights under any
18    one or more of the following:
19            (i) life insurance policies, plans, or benefits,
20            (ii) annuity policies, plans, or benefits,
21            (iii) mutual fund and other dividend investment
22        plans,
23            (iv) retirement, profit sharing, and employee
24        welfare plans and benefits;
25        (9) exercising his or her right to claim or disclaim an
26    elective share in the estate of his or her deceased spouse

 

 

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1    and to renounce any interest by testate or intestate
2    succession or by inter vivos transfer;
3        (10) changing the ward's residence or domicile; or
4        (11) modifying by means of codicil or trust amendment
5    the terms of the ward's will or any revocable trust created
6    by the ward, as the court may consider advisable in light
7    of changes in applicable tax laws.
8    The guardian in his or her petition shall briefly outline
9the action or application of funds for which he or she seeks
10approval, the results expected to be accomplished thereby, and
11the tax savings, if any, expected to accrue. The proposed
12action or application of funds may include gifts of the ward's
13personal property or real estate, but transfers of real estate
14shall be subject to the requirements of Section 20 of this Act.
15Gifts may be for the benefit of prospective legatees, devisees,
16or heirs apparent of the ward or may be made to individuals or
17charities in which the ward is believed to have an interest.
18The guardian shall also indicate in the petition that any
19planned disposition is consistent with the intentions of the
20ward insofar as they can be ascertained, and if the ward's
21intentions cannot be ascertained, the ward will be presumed to
22favor reduction in the incidents of various forms of taxation
23and the partial distribution of his or her estate as provided
24in this subsection. The guardian shall not, however, be
25required to include as a beneficiary or fiduciary any person
26who he has reason to believe would be excluded by the ward. A

 

 

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1guardian shall be required to investigate and pursue a ward's
2eligibility for governmental benefits.
3    (a-6) The guardian may, without an order of court, open,
4maintain, and transfer funds to an ABLE account on behalf of
5the ward and the ward's minor and adult dependent children as
6specified under Section 16.6 of the State Treasurer Act.
7    (b) Upon the direction of the court which issued his
8letters, a guardian may perform the contracts of his ward which
9were legally subsisting at the time of the commencement of the
10ward's disability. The court may authorize the guardian to
11execute and deliver any bill of sale, deed or other instrument.
12    (c) The guardian of the estate of a ward shall appear for
13and represent the ward in all legal proceedings unless another
14person is appointed for that purpose as guardian or next
15friend. This does not impair the power of any court to appoint
16a guardian ad litem or next friend to defend the interests of
17the ward in that court, or to appoint or allow any person as
18the next friend of a ward to commence, prosecute or defend any
19proceeding in his behalf. Without impairing the power of the
20court in any respect, if the guardian of the estate of a ward
21and another person as next friend shall appear for and
22represent the ward in a legal proceeding in which the
23compensation of the attorney or attorneys representing the
24guardian and next friend is solely determined under a
25contingent fee arrangement, the guardian of the estate of the
26ward shall not participate in or have any duty to review the

 

 

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1prosecution of the action, to participate in or review the
2appropriateness of any settlement of the action, or to
3participate in or review any determination of the
4appropriateness of any fees awarded to the attorney or
5attorneys employed in the prosecution of the action.
6    (d) Adjudication of disability shall not revoke or
7otherwise terminate a trust which is revocable by the ward. A
8guardian of the estate shall have no authority to revoke a
9trust that is revocable by the ward, except that the court may
10authorize a guardian to revoke a Totten trust or similar
11deposit or withdrawable capital account in trust to the extent
12necessary to provide funds for the purposes specified in
13paragraph (a) of this Section. If the trustee of any trust for
14the benefit of the ward has discretionary power to apply income
15or principal for the ward's benefit, the trustee shall not be
16required to distribute any of the income or principal to the
17guardian of the ward's estate, but the guardian may bring an
18action on behalf of the ward to compel the trustee to exercise
19the trustee's discretion or to seek relief from an abuse of
20discretion. This paragraph shall not limit the right of a
21guardian of the estate to receive accountings from the trustee
22on behalf of the ward.
23    (d-5) Upon a verified petition by the plenary or limited
24guardian of the estate or the request of the ward that is
25accompanied by a current physician's report that states the
26ward possesses testamentary capacity, the court may enter an

 

 

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1order authorizing the ward to execute a will or codicil. In so
2ordering, the court shall authorize the guardian to retain
3independent counsel for the ward with whom the ward may execute
4or modify a will or codicil.
5    (e) Absent court order pursuant to the Illinois Power of
6Attorney Act directing a guardian to exercise powers of the
7principal under an agency that survives disability, the
8guardian will have no power, duty or liability with respect to
9any property subject to the agency. This subsection (e) applies
10to all agencies, whenever and wherever executed.
11    (f) Upon petition by any interested person (including the
12standby or short-term guardian), with such notice to interested
13persons as the court directs and a finding by the court that it
14is in the best interest of the person with a disability, the
15court may terminate or limit the authority of a standby or
16short-term guardian or may enter such other orders as the court
17deems necessary to provide for the best interest of the person
18with a disability. The petition for termination or limitation
19of the authority of a standby or short-term guardian may, but
20need not, be combined with a petition to have another guardian
21appointed for the person with a disability.
22(Source: P.A. 99-143, eff. 7-27-15; 99-302, eff. 1-1-16;
2399-642, eff. 7-28-16.)
 
24    Section 99. Effective date. This Act takes effect upon
25becoming law.