103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
SB2758

 

Introduced 1/16/2024, by Sen. Karina Villa

 

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

    Amends the Probate Act of 1975. Allows a ward in guardianship to get married who understands the nature, effect, duties, and obligations of marriage. Prior consent of the guardian of the person or estate or approval of the court is not required for the ward to enter into a marriage. A guardian may contest the validity of the marriage pursuant to Sections 301 and 302 of Illinois Marriage and Dissolution of Marriage Act.


LRB103 36614 JRC 66723 b

 

 

A BILL FOR

 

SB2758LRB103 36614 JRC 66723 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
5Section 11a-17 as follows:
 
6    (755 ILCS 5/11a-17)  (from Ch. 110 1/2, par. 11a-17)
7    Sec. 11a-17. Duties of personal guardian.
8    (a) To the extent ordered by the court and under the
9direction of the court, the guardian of the person shall have
10custody of the ward and the ward's minor and adult dependent
11children and shall procure for them and shall make provision
12for their support, care, comfort, health, education and
13maintenance, and professional services as are appropriate, but
14the ward's spouse may not be deprived of the custody and
15education of the ward's minor and adult dependent children,
16without the consent of the spouse, unless the court finds that
17the spouse is not a fit and competent person to have that
18custody and education. The guardian shall assist the ward in
19the development of maximum self-reliance and independence. The
20guardian of the person may petition the court for an order
21directing the guardian of the estate to pay an amount
22periodically for the provision of the services specified by
23the court order. If the ward's estate is insufficient to

 

 

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1provide for education and the guardian of the ward's person
2fails to provide education, the court may award the custody of
3the ward to some other person for the purpose of providing
4education. If a person makes a settlement upon or provision
5for the support or education of a ward, the court may make an
6order for the visitation of the ward by the person making the
7settlement or provision as the court deems proper. A guardian
8of the person may not admit a ward to a mental health facility
9except at the ward's request as provided in Article IV of the
10Mental Health and Developmental Disabilities Code and unless
11the ward has the capacity to consent to such admission as
12provided in Article IV of the Mental Health and Developmental
13Disabilities Code.
14    (a-3) If a guardian of an estate has not been appointed,
15the guardian of the person may, without an order of court,
16open, maintain, and transfer funds to an ABLE account on
17behalf of the ward and the ward's minor and adult dependent
18children as specified under Section 16.6 of the State
19Treasurer Act.
20    (a-5) If the ward filed a petition for dissolution of
21marriage under the Illinois Marriage and Dissolution of
22Marriage Act before the ward was adjudicated a person with a
23disability under this Article, the guardian of the ward's
24person and estate may maintain that action for dissolution of
25marriage on behalf of the ward. Upon petition by the guardian
26of the ward's person or estate, the court may authorize and

 

 

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1direct a guardian of the ward's person or estate to file a
2petition for dissolution of marriage or to file a petition for
3legal separation or declaration of invalidity of marriage
4under the Illinois Marriage and Dissolution of Marriage Act on
5behalf of the ward if the court finds by clear and convincing
6evidence that the relief sought is in the ward's best
7interests. In making its determination, the court shall
8consider the standards set forth in subsection (e) of this
9Section.
10    (a-10) A ward who understands the nature, effect, duties,
11and obligations of marriage retains the fundamental right to
12marry. Prior consent of the guardian of the person or estate or
13approval of the court is not required for the ward to enter
14into a marriage. A ward, guardian of the person, or guardian of
15the estate may seek judicial approval or ratification of a
16marriage pursuant to a petition to the court. Upon petition by
17the guardian of the ward's person or estate, the court may
18authorize and direct a guardian of the ward's person or estate
19to consent, on behalf of the ward, to the ward's marriage
20pursuant to Part II of the Illinois Marriage and Dissolution
21of Marriage Act if the court finds by clear and convincing
22evidence that the marriage is in the ward's best interests. In
23making its determination, the court shall consider the
24standards set forth in subsection (e) of this Section. A
25guardian may contest the validity of a marriage pursuant to
26Sections 301 and 302 of Illinois Marriage and Dissolution of

 

 

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

 

 

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

 

 

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1known or reasonably ascertainable by the guardian. Decisions
2by the guardian shall conform to the ward's current
3preferences: (1) unless the guardian reasonably believes that
4doing so would result in substantial harm to the ward's
5welfare or personal or financial interests; and (2) so long as
6such decisions give substantial weight to what the ward, if
7competent, would have done or intended under the
8circumstances, taking into account evidence that includes, but
9is not limited to, the ward's personal, philosophical,
10religious and moral beliefs, and ethical values relative to
11the decision to be made by the guardian. Where possible, the
12guardian shall determine how the ward would have made a
13decision based on the ward's previously expressed preferences,
14and make decisions in accordance with the preferences of the
15ward. If the ward's wishes are unknown and remain unknown
16after reasonable efforts to discern them, or if the guardian
17reasonably believes that a decision made in conformity with
18the ward's preferences would result in substantial harm to the
19ward's welfare or personal or financial interests, the
20decision shall be made on the basis of the ward's best
21interests as determined by the guardian. In determining the
22ward's best interests, the guardian shall weigh the reason for
23and nature of the proposed action, the benefit or necessity of
24the action, the possible risks and other consequences of the
25proposed action, and any available alternatives and their
26risks, consequences and benefits, and shall take into account

 

 

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1any other information, including the views of family and
2friends, that the guardian believes the ward would have
3considered if able to act for herself or himself.
4    (f) Upon petition by any interested person (including the
5standby or short-term guardian), with such notice to
6interested persons as the court directs and a finding by the
7court that it is in the best interests of the person with a
8disability, the court may terminate or limit the authority of
9a standby or short-term guardian or may enter such other
10orders as the court deems necessary to provide for the best
11interests of the person with a disability. The petition for
12termination or limitation of the authority of a standby or
13short-term guardian may, but need not, be combined with a
14petition to have another guardian appointed for the person
15with a disability.
16    (g)(1) Unless there is a court order to the contrary, the
17guardian, consistent with the standards set forth in
18subsection (e) of this Section, shall use reasonable efforts
19to notify the ward's known adult children, who have requested
20notification and provided contact information, of the ward's
21admission to a hospital, hospice, or palliative care program,
22the ward's death, and the arrangements for the disposition of
23the ward's remains.
24    (2) If a guardian unreasonably prevents an adult child,
25spouse, adult grandchild, parent, or adult sibling of the ward
26from visiting the ward, the court, upon a verified petition,

 

 

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1may order the guardian to permit visitation between the ward
2and the adult child, spouse, adult grandchild, parent, or
3adult sibling. In making its determination, the court shall
4consider the standards set forth in subsection (e) of this
5Section. The court shall not allow visitation if the court
6finds that the ward has capacity to evaluate and communicate
7decisions regarding visitation and expresses a desire not to
8have visitation with the petitioner. This subsection (g) does
9not apply to duly appointed public guardians or the Office of
10State Guardian.
11(Source: P.A. 101-329, eff. 8-9-19; 102-72, eff. 1-1-22;
12102-258, eff. 8-6-21; 102-813, eff. 5-13-22.)