HB2348 101ST GENERAL ASSEMBLY

LRB101 07509 LNS 52553 b

101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB2348

Introduced , by Rep. Mike Murphy

SYNOPSIS AS INTRODUCED:

755 ILCS 5/11a-3	from Ch. 110 1/2, par. 11a-3
755 ILCS 5/11a-11	from Ch. 110 1/2, par. 11a-11
755 ILCS 5/11a-12	from Ch. 110 1/2, par. 11a-12

Amends the Probate Act of 1975. Provides that the court may issue an order that specifically grants the guardian the power to enforce the rights of the person with a disability to receive visitors, telephone calls, and personal mail. Provides that at a hearing, the court shall inquire, among other things, the recent history of the respondent's family care and visitation. Provides that the court shall, during the selection of the guardian, give due consideration to, among other things, any history of the proposed guardian having unreasonably isolated the respondent from any close family member who was a longstanding, frequent visitor or caregiver of the respondent. Provides that at the time of its initial hearing, the court may enter an order providing immediate visitation with the respondent by an adult child, spouse, grandchild, or sibling of the respondent who alleges that his or her visitation with the respondent is being unreasonably denied.

A BILL FOR

AN ACT concerning civil law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Probate Act of 1975 is amended by changing Sections 11a-3, 11a-11, and 11a-12 as follows:

(755 ILCS 5/11a-3) (from Ch. 110 1/2, par. 11a-3)

Sec. 11a-3. Adjudication of disability; Power to appoint guardian.

(a) Upon the filing of a petition by a reputable person or by the alleged person with a disability himself or on its own motion, the court may adjudge a person to be a person with a disability, but only if it has been demonstrated by clear and convincing evidence that the person is a person with a disability as defined in Section 11a-2. If the court adjudges a person to be a person with a disability, the court may appoint (1) a guardian of his person, if it has been demonstrated by clear and convincing evidence that because of his disability he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the care of his person, or (2) a guardian of his estate, if it has been demonstrated by clear and convincing evidence that because of his disability he is unable to manage his estate or financial affairs, or (3) a guardian of his person and of his estate.

(b) Guardianship shall be utilized only as is necessary to promote the well-being of the person with a disability, to protect him from neglect, exploitation, or abuse, and to encourage development of his maximum self-reliance and independence including, but not limited to, the right to receive visitors, telephone calls, and personal mail, unless specifically limited by court order. The court may issue an order that specifically grants the guardian the power to enforce the rights of the person with a disability to receive visitors, telephone calls, and personal mail, or that directs the guardian to allow those visitors, telephone calls, and personal mail. Guardianship shall be ordered only to the extent necessitated by the individual's actual mental, physical and adaptive limitations.

(Source: P.A. 99-143, eff. 7-27-15.)

(755 ILCS 5/11a-11) (from Ch. 110 1/2, par. 11a-11)

Sec. 11a-11. Hearing.

(a) The respondent is entitled to be represented by counsel, to demand a jury of 6 persons, to present evidence, and to confront and cross-examine all witnesses. The hearing may be closed to the public on request of the respondent, the guardian ad litem, or appointed or other counsel for the respondent. Unless excused by the court upon a showing that the respondent refuses to be present or will suffer harm if required to attend, the respondent shall be present at the hearing.

(b) (Blank).

(c) (Blank).

(d) In an uncontested proceeding for the appointment of a guardian the person who prepared the report required by Section 11a-9 will only be required to testify at trial upon order of court for cause shown.

(e) At the hearing the court shall inquire regarding: (1) the nature and extent of respondent's general intellectual and physical functioning; (2) the extent of the impairment of his adaptive behavior if he is a person with a developmental disability, or the nature and severity of his mental illness if he is a person with mental illness; (3) the understanding and capacity of the respondent to make and communicate responsible decisions concerning his person; (4) the capacity of the respondent to manage his estate and his financial affairs; (5) the appropriateness of proposed and alternate living arrangements; (6) the impact of the disability upon the respondent's functioning in the basic activities of daily living and the important decisions faced by the respondent or normally faced by adult members of the respondent's community; and (7) the recent history of the respondent's family care and visitation, including any isolation of the respondent from a close family member who had been a long-time, frequent visitor or caregiver of the respondent; and (8) any other area of inquiry deemed appropriate by the court.

(f) An authenticated transcript of the evidence taken in a judicial proceeding concerning the respondent under the Mental Health and Developmental Disabilities Code is admissible in evidence at the hearing.

(g) If the petition is for the appointment of a guardian for a beneficiary of the Veterans Administration who has a disability, a certificate of the Administrator of Veterans Affairs or his representative stating that the beneficiary has been determined to be incompetent by the Veterans Administration on examination in accordance with the laws and regulations governing the Veterans Administration in effect upon the date of the issuance of the certificate and that the appointment of a guardian is a condition precedent to the payment of any money due the beneficiary by the Veterans Administration, is admissible in evidence at the hearing.

(Source: P.A. 98-1094, eff. 1-1-15; 99-143, eff. 7-27-15.)

(755 ILCS 5/11a-12) (from Ch. 110 1/2, par. 11a-12)

Sec. 11a-12. Order of appointment.)

(a) If basis for the appointment of a guardian as specified in Section 11a-3 is not found, the court shall dismiss the petition.

(b) If the respondent is adjudged to be a person with a disability and to lack some but not all of the capacity as specified in Section 11a-3, and if the court finds that guardianship is necessary for the protection of the person with a disability, his or her estate, or both, the court shall appoint a limited guardian for the respondent's person or estate or both. The court shall enter a written order stating the factual basis for its findings and specifying the duties and powers of the guardian and the legal disabilities to which the respondent is subject.

(c) If the respondent is adjudged to be a person with a disability and to be totally without capacity as specified in Section 11a-3, and if the court finds that limited guardianship will not provide sufficient protection for the person with a disability, his or her estate, or both, the court shall appoint a plenary guardian for the respondent's person or estate or both. The court shall enter a written order stating the factual basis for its findings.

(d) The selection of the guardian shall be in the discretion of the court, which shall give due consideration to the preference of the person with a disability as to a guardian, as well as the qualifications of the proposed guardian and any history of the proposed guardian having unreasonably isolated the respondent from any family member who was a longstanding, frequent visitor or caregiver of the respondent, in making its appointment. At the time of its initial hearing, the court may enter an order providing immediate visitation with the respondent by an adult child, spouse, grandchild, or sibling of the respondent who, in a certified objection to the proposed petition for guardianship, alleges that his or her visitation with the respondent is being unreasonably denied. However, the paramount concern in the selection of the guardian is the best interest and well-being of the person with a disability.

(e) The order of appointment of a guardian of the person in any county with a population of less than 3 million shall include the requirement that the guardian of the person complete the training program as provided in Section 33.5 of the Guardianship and Advocacy Act that outlines the responsibilities of the guardian of the person and the rights of the person under guardianship and file with the court a certificate of completion one year from the date of issuance of the letters of guardianship, except that: (1) the chief judge of any circuit may order implementation of another training program by a suitable provider containing substantially similar content; (2) employees of the Office of the State Guardian, public guardians, attorneys currently authorized to practice law, corporate fiduciaries, and persons certified by the Center for Guardianship Certification are exempt from this training requirement; and (3) the court may, for good cause shown, exempt from this requirement an individual not otherwise listed in item (2). For the purposes of this subsection (e), good cause may be proven by affidavit. If the court finds good cause to exempt an individual from the training requirement, the order of appointment shall so state.

(Source: P.A. 99-143, eff. 7-27-15; 100-483, eff. 9-8-18.)