Rep. Jennifer Gong-Gershowitz

Filed: 4/20/2023

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 195

2    AMENDMENT NO. ______. Amend Senate Bill 195 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Probate Act of 1975 is amended by changing
5Section 11-5 as follows:
 
6    (755 ILCS 5/11-5)  (from Ch. 110 1/2, par. 11-5)
7    Sec. 11-5. Appointment of guardian.
8    (a) Upon the filing of a petition for the appointment of a
9guardian or on its own motion, the court may appoint a guardian
10of the estate or of both the person and estate, of a minor, or
11may appoint a guardian of the person only of a minor or minors,
12as the court finds to be in the best interest of the minor or
13minors.
14    (a-1) A parent, adoptive parent or adjudicated parent,
15whose parental rights have not been terminated, may designate
16in any writing, including a will, a person qualified to act

 

 

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1under Section 11-3 to be appointed as guardian of the person or
2estate, or both, of an unmarried minor or of a child likely to
3be born. A parent, adoptive parent or adjudicated parent,
4whose parental rights have not been terminated, or a guardian
5or a standby guardian of an unmarried minor or of a child
6likely to be born may designate in any writing, including a
7will, a person qualified to act under Section 11-3 to be
8appointed as successor guardian of the minor's person or
9estate, or both. The designation must be witnessed by 2 or more
10credible witnesses at least 18 years of age, neither of whom is
11the person designated as the guardian. The designation may be
12proved by any competent evidence. If the designation is
13executed and attested in the same manner as a will, it shall
14have prima facie validity. The designation of a guardian or
15successor guardian does not affect the rights of the other
16parent in the minor.
17    (b) The court lacks jurisdiction to proceed on a petition
18for the appointment of a guardian of a minor if it finds that
19(i) the minor has a living parent, adoptive parent or
20adjudicated parent, whose parental rights have not been
21terminated, whose whereabouts are known, and who is willing
22and able to make and carry out day-to-day child care decisions
23concerning the minor, unless: (1) the parent or parents
24voluntarily relinquished physical custody of the minor; (2)
25after receiving notice of the hearing under Section 11-10.1,
26the parent or parents fail to object to the appointment at the

 

 

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1hearing on the petition; (3) the parent or parents consent to
2the appointment as evidenced by a written document that has
3been notarized and dated, or by a personal appearance and
4consent in open court; or (4) the parent or parents, due to an
5administrative separation, are unable to give consent to the
6appointment in person or by a notarized, written document as
7evidenced by a sworn affidavit submitted by the petitioner
8describing the parent's or parents' inability to receive
9notice or give consent; or (ii) there is a guardian for the
10minor appointed by a court of competent jurisdiction. There
11shall be a rebuttable presumption that a parent of a minor is
12willing and able to make and carry out day-to-day child care
13decisions concerning the minor, but the presumption may be
14rebutted by a preponderance of the evidence. If a short-term
15guardian has been appointed for the minor prior to the filing
16of the petition and the petitioner for guardianship is not the
17short-term guardian, there shall be a rebuttable presumption
18that it is in the best interest of the minor to remain in the
19care of the short-term guardian. The petitioner shall have the
20burden of proving by a preponderance of the evidence that it is
21not in the child's best interest to remain with the short-term
22guardian.
23    (b-1) If the court finds the appointment of a guardian of
24the minor to be in the best interest of the minor, and if a
25standby guardian has previously been appointed for the minor
26under Section 11-5.3, the court shall appoint the standby

 

 

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1guardian as the guardian of the person or estate, or both, of
2the minor unless the court finds, upon good cause shown, that
3the appointment would no longer be in the best interest of the
4minor.
5    (b-2) No petition for the appointment of a guardian of a
6minor shall be filed if the primary purpose of the filing is to
7reduce the financial resources available to the minor in order
8to cause the minor to qualify for public or private financial
9assistance from an educational institution. The court may deny
10the petition if it finds by a preponderance of the evidence
11that the primary purpose of the filing is to enable the minor
12to declare financial independence so that the minor may obtain
13public or private financial assistance from an educational
14institution or a State or federal student financial aid
15program.
16    (c) If the minor is 14 years of age or more, the minor may
17nominate the guardian of the minor's person and estate,
18subject to approval of the court. If the minor's nominee is not
19approved by the court or if, after notice to the minor, the
20minor fails to nominate a guardian of the minor's person or
21estate, the court may appoint the guardian without nomination.
22    (d) The court shall not appoint as guardian of the person
23of the minor any person whom the court has determined had
24caused or substantially contributed to the minor becoming a
25neglected or abused minor as defined in the Juvenile Court Act
26of 1987, unless 2 years have elapsed since the last proven

 

 

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1incident of abuse or neglect and the court determines that
2appointment of such person as guardian is in the best
3interests of the minor.
4    (e) Previous statements made by the minor relating to any
5allegations that the minor is an abused or neglected child
6within the meaning of the Abused and Neglected Child Reporting
7Act, or an abused or neglected minor within the meaning of the
8Juvenile Court Act of 1987, shall be admissible in evidence in
9a hearing concerning appointment of a guardian of the person
10or estate of the minor. No such statement, however, if
11uncorroborated and not subject to cross-examination, shall be
12sufficient in itself to support a finding of abuse or neglect.
13(Source: P.A. 101-120, eff. 7-23-19.)
 
14    Section 10. The Educational Planning Services Consumer
15Protection Act is amended by changing Sections 10, 15, 20, 25,
1630, 40, and 90 as follows:
 
17    (815 ILCS 616/10)
18    Sec. 10. Purpose and construction. The purpose of this Act
19is to protect consumers who enter into agreements with
20educational planning service providers and to regulate
21educational planning service providers. This Act shall be
22construed as a consumer protection law for all purposes. This
23Act shall be liberally construed to effectuate its purpose.
24(Source: P.A. 102-571, eff. 1-1-22.)
 

 

 

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1    (815 ILCS 616/15)
2    Sec. 15. Definitions. As used in this Act:
3    "Consumer" means any person who purchases or contracts for
4the purchase of educational planning services.
5    "Educational planning services" means college and career
6preparatory planning services, including, but not limited to,
7advice regarding and assistance with college and career
8searches; college application preparation or submission;
9financial aid application planning, preparation, or
10submission; and scholarship searches and applications.
11    "Educational planning service provider" means any person
12or entity engaging in or holding itself out as engaging in the
13business of providing educational planning services in
14exchange for any fee or compensation, or any person who
15solicits or acts on behalf of any person or entity engaging in
16or holding itself out as engaging in the business of providing
17educational planning services in exchange for any fee or
18compensation. "Educational planning service provider" does not
19include any of the following:
20        (1) An A not-for-profit or public institution of
21    higher learning, as defined in the Higher Education
22    Student Assistance Act, and the individuals employed by
23    that institution where educational planning services are
24    provided as part of the financial aid or career counseling
25    services offered by the institution.

 

 

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1        (2) Public entities and their officers while acting in
2    their official capacities.
3        (3) Persons acting on behalf of a consumer under court
4    order or as a legal representative.
5    "Enrollment fee" or "set up fee" means any fee,
6obligation, or compensation paid or to be paid by the consumer
7to an educational planning service provider in consideration
8of or in connection with establishing a contract or other
9agreement with a consumer related to the provision of
10educational planning services.
11    "Maintenance fee" means any fee, obligation, or
12compensation paid or to be paid by the consumer on a periodic
13basis to an educational planning service provider in
14consideration for maintaining the relationship and services to
15be provided by the educational planning service provider in
16accordance with a contract with a consumer related to the
17provision of educational planning services.
18(Source: P.A. 102-571, eff. 1-1-22.)
 
19    (815 ILCS 616/20)
20    Sec. 20. Prohibitions and requirements.
21    (a) It shall be unlawful for any person or entity to act as
22an educational planning service provider unless it remains in
23compliance with except as authorized by this Act.
24    (b) An educational planning service provider may not
25provide educational planning services to a consumer for a fee

 

 

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1without a written contract signed and dated by both the
2consumer and the educational planning service provider. A
3contract between an educational planning service provider and
4a consumer for the provision of educational planning services
5shall disclose clearly and conspicuously all of the following:
6        (1) The name and address of the consumer.
7        (2) The date of execution of the contract.
8        (3) The legal name of the educational planning service
9    provider, including any other business names used by the
10    educational planning service provider.
11        (4) The corporate address and regular business
12    address, including a street address, of the educational
13    planning service provider.
14        (5) The telephone number at which the consumer may
15    speak with a representative of the educational planning
16    service provider during normal business hours.
17        (6) A description of the services and an itemized list
18    of all fees to be paid by the consumer for each service and
19    the date, approximate date, or circumstances under which
20    each fee will become due.
21        (7) The contents of the Consumer Notice and Rights
22    Form provided in Section 25 of this Act.
23        (8) A written notice to the consumer that the consumer
24    may cancel the contract at any time until after the
25    educational planning service provider has fully performed
26    each service the educational planning service provider

 

 

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1    contracted to perform or represented he or she would
2    perform and that the consumer may not be required to pay
3    for services the consumer did not receive and shall be
4    entitled to a full refund of any fees paid for educational
5    planning services not provided.
6        (9) A form the consumer may use to cancel the contract
7    pursuant to this Act. The form shall include the name and
8    mailing address of the educational planning service
9    provider and shall disclose clearly and conspicuously how
10    the consumer can cancel the contract, including applicable
11    addresses, telephone numbers, facsimile numbers, and
12    electronic mail addresses the consumer can use to cancel
13    the contract. Notwithstanding any other provision of this
14    paragraph (9) to the contrary, a consumer's lack of strict
15    adherence to an educational planning service provider's
16    cancellation form or processes does not invalidate a
17    consumer's good faith and reasonable method or form of
18    cancellation.
19    (c) If an educational planning service provider
20communicates with a consumer primarily in a language other
21than English, then the educational planning service provider
22shall furnish to the consumer a translation of all the
23disclosures and documents required by this Act, including, but
24not limited to, the contract, in that other language.
25    (d) An educational planning service provider may not
26charge or receive from a consumer any enrollment fee, set up

 

 

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1fee, up-front fee of any kind, or maintenance fee, and a
2consumer shall pay only for the educational planning services
3provided.
4    (e) An educational planning service provider may not do
5any of the following:
6        (1) Represent, expressly or by implication, any
7    results or outcomes of its educational planning services
8    in any advertising, marketing, or other communication to
9    consumers unless the educational planning service provider
10    possesses substantiation for such representation at the
11    time such representation is made.
12        (2) Expressly or by implication, make any unfair or
13    deceptive representations or any omissions of material
14    facts in any of its advertising or marketing
15    communications concerning educational planning services.
16        (3) Advertise or market educational planning services,
17    enter into a contract for educational planning services,
18    or provide educational planning services without making
19    the disclosures required in this Act at the times and in
20    the form and manner as described in this Act.
21        (4) Advise about or represent, expressly or by
22    implication, any unlawful services to be provided or fees
23    to be collected by the educational planning service
24    provider.
25        (5) Advise or represent, expressly or by implication,
26    that consumers pay any fees that are unearned by the

 

 

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1    educational planning service provider.
2        (6) Advise, encourage, or represent, expressly or by
3    implication, that a consumer provide false or misleading
4    information about financial or other circumstances to gain
5    admission into a higher education institution or to be
6    eligible for student financial aid, including, but not
7    limited to, advising a consumer to petition for the
8    appointment of a guardian for a minor for the primary
9    purpose of reducing the financial resources available to
10    the minor in order to cause the minor to qualify for public
11    or private financial aid.
12(Source: P.A. 102-571, eff. 1-1-22.)
 
13    (815 ILCS 616/25)
14    Sec. 25. Required disclosures.
15    (a) In any marketing or advertising communications, an
16education planning service provider must provide the following
17disclosure verbatim, both orally and in writing, with the
18caption:
 
19    
CONSUMER NOTICE OF AVAILABILITY
20    
OF FREE THESE SERVICES FOR FREE
21        General educational Educational planning services may
22    be available of this type are provided free of charge from
23    at no cost to you by the Illinois Student Assistance
24    Commission and may also be offered by other public or

 

 

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1    not-for-profit entities, such as a public library or an
2    institution of higher learning.
 
3    (b) An educational planning service provider must provide
4the following warning verbatim, both orally and in writing,
5with the caption "CONSUMER NOTICE AND RIGHTS FORM" in at least
618-point 28-point font and the remaining portion in at least
712-point 14-point font, to a consumer before the consumer
8signs a contract for the educational planning service
9provider's services:
 
10    
CONSUMER NOTICE AND RIGHTS FORM

 
11    
AVAILABILITY OF FREE THESE SERVICES FOR FREE
12        General educational Educational planning services may
13    be available of this type are provided free of charge from
14    at no cost to you by the Illinois Student Assistance
15    Commission and may be offered by other public or
16    not-for-profit entities, such as a public library or an
17    institution of higher learning.
 
18    
YOUR RIGHT TO CANCEL
19        If you sign a contract with an educational planning
20    service provider, you have the right to cancel at any time
21    and receive a full refund of all unearned fees you have
22    paid to the provider. You will not be responsible for

 

 

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1    payment of services that are not fully performed.
 
2    
IF YOU ARE DISSATISFIED OR YOU HAVE QUESTIONS
3        If you are dissatisfied with an educational planning
4    service provider or have any questions, please bring it to
5    the attention of the Illinois Attorney General's Office.
 
6    (c) The educational planning service provider must
7maintain proof that it has provided to the consumer the
8Consumer Notice and Rights Form in accordance with subsection
9(b) of this Section.
10    (d) The consumer shall sign and date an acknowledgment
11form titled "Consumer Notice and Rights Form" that states: "I,
12the consumer, have received from the educational planning
13service provider a copy of the form titled "Consumer Notice
14and Rights Form," and I have been provided the Illinois
15Student Assistance Commission's Internet website address where
16I can obtain general educational planning services are
17provided free of charge.". The educational planning service
18provider or its representative shall also sign and date the
19acknowledgment form, which shall include the name and address
20of the educational planning service provider. The
21acknowledgment form shall be in duplicate and shall be
22incorporated into the Consumer Notice and Rights Form under
23subsection (b) of this Section. The original acknowledgment
24form shall be retained by the educational planning service

 

 

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1provider, and the duplicate copy shall be retained by the
2consumer.
3    (e) If the acknowledgment form under subsection (d) of
4this Section is in an electronic format, then, in addition to
5the other requirements of this Act, the acknowledgment form
6shall:
7        (1) contain a live link to the Illinois Student
8    Assistance Commission's Internet website where general
9    educational planning services may be available are offered
10    free of charge; and
11        (2) be digitally signed by the consumer in compliance
12    with the provisions of the federal Electronic Signatures
13    in Global and National Commerce Act concerning consumer
14    disclosures, including subsection (c) of Section 101 of
15    that Act.
16(Source: P.A. 102-571, eff. 1-1-22.)
 
17    (815 ILCS 616/30)
18    Sec. 30. Cancellation of contract; refund.
19    (a) A consumer may cancel a contract with an educational
20planning service provider at any time before the educational
21planning service provider has fully performed each service the
22educational planning service provider contracted to perform or
23represented it would perform.
24    (b) If a consumer cancels a contract with an educational
25planning service provider, then the educational planning

 

 

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1service provider shall refund all fees and compensation, with
2the exception of any earned fees for services provided.
3    (c) At any time upon a material violation of this Act on
4the part of the educational planning service provider, the
5educational planning service provider shall refund all fees
6and compensation to the consumer.
7    (d) An educational planning service provider shall make
8any refund required under this Act within 5 business days
9after the notice of cancellation or voiding of the contract
10due to a violation of this Act and shall include with the
11refund a full statement of account showing fees received and
12fees refunded.
13    (e) Upon cancellation or voiding of the contract, all
14direct debit authorizations granted to the educational
15planning service provider by the consumer shall be considered
16revoked and voided.
17    (f) Upon the termination of the contract for any reason,
18the educational planning service provider shall provide a
19timely and accurate response to any postsecondary institution,
20agency, or other entity that contacts the provider in
21reference to the consumer, indicating that the provider notice
22that it no longer represents the consumer to any entity or
23agency with whom the educational planning service provider has
24had any prior communication on behalf of the consumer in
25connection with the provision of any educational planning
26services.

 

 

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1(Source: P.A. 102-571, eff. 1-1-22.)
 
2    (815 ILCS 616/40)
3    Sec. 40. Civil remedies; injunction.
4    (a) A material violation of this Act constitutes an
5unlawful practice under the Consumer Fraud and Deceptive
6Business Practices Act. All remedies, penalties, and authority
7granted to the Attorney General or State's Attorney by the
8Consumer Fraud and Deceptive Business Practices Act shall be
9available to him or her for the enforcement of this Act.
10    (b) A consumer who suffers loss by reason of a material
11violation of this Act may bring a civil action in accordance
12with the Consumer Fraud and Deceptive Business Practices Act
13to enforce a provision of this Act. All remedies and rights
14granted to a consumer by the Consumer Fraud and Deceptive
15Business Practices Act shall be available to the consumer
16bringing such an action. The remedies and rights provided for
17in this Act are not exclusive, but cumulative, and all other
18applicable claims are specifically preserved.
19    (c) Any contract for educational planning services made in
20material violation of this Act shall be null and void and of no
21legal effect.
22    (d) To engage in educational planning services in
23violation of this Act is declared to be inimical to the public
24welfare and to constitute a public nuisance. The Illinois
25Student Assistance Commission may, in the name of the people

 

 

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1of the State of Illinois, through the Attorney General, file a
2complaint for an injunction in the circuit court to enjoin
3such person from engaging in that unlawful business. An
4injunction proceeding shall be in addition to and not in lieu
5of penalties and remedies otherwise provided in this Act.
6(Source: P.A. 102-571, eff. 1-1-22.)
 
7    (815 ILCS 616/90)
8    Sec. 90. Rules. The Illinois Student Assistance Commission
9shall adopt and enforce all reasonable rules necessary or
10appropriate for the administration of this Act.
11(Source: P.A. 102-571, eff. 1-1-22.)".