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.


LRB101 07509 LNS 52553 b

 

 

A BILL FOR

 

HB2348LRB101 07509 LNS 52553 b

1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Probate Act of 1975 is amended by changing
5Sections 11a-3, 11a-11, and 11a-12 as follows:
 
6    (755 ILCS 5/11a-3)  (from Ch. 110 1/2, par. 11a-3)
7    Sec. 11a-3. Adjudication of disability; Power to appoint
8guardian.
9    (a) Upon the filing of a petition by a reputable person or
10by the alleged person with a disability himself or on its own
11motion, the court may adjudge a person to be a person with a
12disability, but only if it has been demonstrated by clear and
13convincing evidence that the person is a person with a
14disability as defined in Section 11a-2. If the court adjudges a
15person to be a person with a disability, the court may appoint
16(1) a guardian of his person, if it has been demonstrated by
17clear and convincing evidence that because of his disability he
18lacks sufficient understanding or capacity to make or
19communicate responsible decisions concerning the care of his
20person, or (2) a guardian of his estate, if it has been
21demonstrated by clear and convincing evidence that because of
22his disability he is unable to manage his estate or financial
23affairs, or (3) a guardian of his person and of his estate.

 

 

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1    (b) Guardianship shall be utilized only as is necessary to
2promote the well-being of the person with a disability, to
3protect him from neglect, exploitation, or abuse, and to
4encourage development of his maximum self-reliance and
5independence including, but not limited to, the right to
6receive visitors, telephone calls, and personal mail, unless
7specifically limited by court order. The court may issue an
8order that specifically grants the guardian the power to
9enforce the rights of the person with a disability to receive
10visitors, telephone calls, and personal mail, or that directs
11the guardian to allow those visitors, telephone calls, and
12personal mail. Guardianship shall be ordered only to the extent
13necessitated by the individual's actual mental, physical and
14adaptive limitations.
15(Source: P.A. 99-143, eff. 7-27-15.)
 
16    (755 ILCS 5/11a-11)  (from Ch. 110 1/2, par. 11a-11)
17    Sec. 11a-11. Hearing.
18    (a) The respondent is entitled to be represented by
19counsel, to demand a jury of 6 persons, to present evidence,
20and to confront and cross-examine all witnesses. The hearing
21may be closed to the public on request of the respondent, the
22guardian ad litem, or appointed or other counsel for the
23respondent. Unless excused by the court upon a showing that the
24respondent refuses to be present or will suffer harm if
25required to attend, the respondent shall be present at the

 

 

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1hearing.
2    (b) (Blank).
3    (c) (Blank).
4    (d) In an uncontested proceeding for the appointment of a
5guardian the person who prepared the report required by Section
611a-9 will only be required to testify at trial upon order of
7court for cause shown.
8    (e) At the hearing the court shall inquire regarding: (1)
9the nature and extent of respondent's general intellectual and
10physical functioning; (2) the extent of the impairment of his
11adaptive behavior if he is a person with a developmental
12disability, or the nature and severity of his mental illness if
13he is a person with mental illness; (3) the understanding and
14capacity of the respondent to make and communicate responsible
15decisions concerning his person; (4) the capacity of the
16respondent to manage his estate and his financial affairs; (5)
17the appropriateness of proposed and alternate living
18arrangements; (6) the impact of the disability upon the
19respondent's functioning in the basic activities of daily
20living and the important decisions faced by the respondent or
21normally faced by adult members of the respondent's community;
22and (7) the recent history of the respondent's family care and
23visitation, including any isolation of the respondent from a
24close family member who had been a long-time, frequent visitor
25or caregiver of the respondent; and (8) any other area of
26inquiry deemed appropriate by the court.

 

 

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1    (f) An authenticated transcript of the evidence taken in a
2judicial proceeding concerning the respondent under the Mental
3Health and Developmental Disabilities Code is admissible in
4evidence at the hearing.
5    (g) If the petition is for the appointment of a guardian
6for a beneficiary of the Veterans Administration who has a
7disability, a certificate of the Administrator of Veterans
8Affairs or his representative stating that the beneficiary has
9been determined to be incompetent by the Veterans
10Administration on examination in accordance with the laws and
11regulations governing the Veterans Administration in effect
12upon the date of the issuance of the certificate and that the
13appointment of a guardian is a condition precedent to the
14payment of any money due the beneficiary by the Veterans
15Administration, is admissible in evidence at the hearing.
16(Source: P.A. 98-1094, eff. 1-1-15; 99-143, eff. 7-27-15.)
 
17    (755 ILCS 5/11a-12)  (from Ch. 110 1/2, par. 11a-12)
18    Sec. 11a-12. Order of appointment.)
19    (a) If basis for the appointment of a guardian as specified
20in Section 11a-3 is not found, the court shall dismiss the
21petition.
22    (b) If the respondent is adjudged to be a person with a
23disability and to lack some but not all of the capacity as
24specified in Section 11a-3, and if the court finds that
25guardianship is necessary for the protection of the person with

 

 

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1a disability, his or her estate, or both, the court shall
2appoint a limited guardian for the respondent's person or
3estate or both. The court shall enter a written order stating
4the factual basis for its findings and specifying the duties
5and powers of the guardian and the legal disabilities to which
6the respondent is subject.
7    (c) If the respondent is adjudged to be a person with a
8disability and to be totally without capacity as specified in
9Section 11a-3, and if the court finds that limited guardianship
10will not provide sufficient protection for the person with a
11disability, his or her estate, or both, the court shall appoint
12a plenary guardian for the respondent's person or estate or
13both. The court shall enter a written order stating the factual
14basis for its findings.
15    (d) The selection of the guardian shall be in the
16discretion of the court, which shall give due consideration to
17the preference of the person with a disability as to a
18guardian, as well as the qualifications of the proposed
19guardian and any history of the proposed guardian having
20unreasonably isolated the respondent from any family member who
21was a longstanding, frequent visitor or caregiver of the
22respondent, in making its appointment. At the time of its
23initial hearing, the court may enter an order providing
24immediate visitation with the respondent by an adult child,
25spouse, grandchild, or sibling of the respondent who, in a
26certified objection to the proposed petition for guardianship,

 

 

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1alleges that his or her visitation with the respondent is being
2unreasonably denied. However, the paramount concern in the
3selection of the guardian is the best interest and well-being
4of the person with a disability.
5    (e) The order of appointment of a guardian of the person in
6any county with a population of less than 3 million shall
7include the requirement that the guardian of the person
8complete the training program as provided in Section 33.5 of
9the Guardianship and Advocacy Act that outlines the
10responsibilities of the guardian of the person and the rights
11of the person under guardianship and file with the court a
12certificate of completion one year from the date of issuance of
13the letters of guardianship, except that: (1) the chief judge
14of any circuit may order implementation of another training
15program by a suitable provider containing substantially
16similar content; (2) employees of the Office of the State
17Guardian, public guardians, attorneys currently authorized to
18practice law, corporate fiduciaries, and persons certified by
19the Center for Guardianship Certification are exempt from this
20training requirement; and (3) the court may, for good cause
21shown, exempt from this requirement an individual not otherwise
22listed in item (2). For the purposes of this subsection (e),
23good cause may be proven by affidavit. If the court finds good
24cause to exempt an individual from the training requirement,
25the order of appointment shall so state.
26(Source: P.A. 99-143, eff. 7-27-15; 100-483, eff. 9-8-18.)