Full Text of SB3592 97th General Assembly
SB3592ham003 97TH GENERAL ASSEMBLY | Rep. Sara Feigenholtz Filed: 5/30/2012
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| 1 | | AMENDMENT TO SENATE BILL 3592
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 3592, AS AMENDED, | 3 | | by replacing everything after the enacting clause with the | 4 | | following:
| 5 | | "Section 5. The Guardianship and Advocacy Act is amended by | 6 | | changing Section 31 as follows:
| 7 | | (20 ILCS 3955/31) (from Ch. 91 1/2, par. 731)
| 8 | | Sec. 31. Appointment; availability of State Guardian; | 9 | | available private guardian. The State Guardian shall not be | 10 | | appointed if another suitable
person is available and willing | 11 | | to accept the guardianship appointment.
In all cases where a | 12 | | court appoints the State Guardian, the court shall
indicate in | 13 | | the order appointing the guardian as a finding of fact that no
| 14 | | other suitable and willing person could be found to accept the | 15 | | guardianship
appointment. On and after the effective date of
| 16 | | this amendatory Act of the 97th General Assembly, the court |
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| 1 | | shall also indicate in the order, as a finding of fact, the | 2 | | reasons that the State Guardian appointment, rather than the | 3 | | appointment of another interested party, is required. This | 4 | | requirement shall be waived where the Office of State
Guardian | 5 | | petitions for its own appointment as guardian.
| 6 | | (Source: P.A. 89-396, eff. 8-20-95.)
| 7 | | Section 10. The Clerks of Courts Act is amended by adding | 8 | | Section 27.3f as follows: | 9 | | (705 ILCS 105/27.3f new) | 10 | | Sec. 27.3f. Guardianship and advocacy operations fee. | 11 | | (a) As used in this Section, "guardianship and advocacy" | 12 | | means the guardianship and advocacy services provided by the | 13 | | Guardianship and Advocacy Commission and defined in the | 14 | | Guardianship and Advocacy Act. Viable public guardianship and | 15 | | advocacy programs, including the public guardianship programs | 16 | | created and supervised in probate proceedings in the Illinois | 17 | | courts, are essential to the administration of justice and | 18 | | ensure that incapacitated persons and their estates are | 19 | | protected. To defray the expense of maintaining and operating | 20 | | the divisions and programs of the Guardianship and Advocacy | 21 | | Commission and to support viable guardianship and advocacy | 22 | | programs throughout Illinois, each circuit court clerk shall | 23 | | charge and collect a fee on all matters filed in probate cases | 24 | | in accordance with this Section, but no fees shall be assessed |
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| 1 | | against the State Guardian, any State agency under the | 2 | | jurisdiction of the Governor, any public guardian, or any | 3 | | State's Attorney. | 4 | | (b) No fee specified in this Section shall be imposed in | 5 | | any minor guardianship established under Article XI of the | 6 | | Probate Act of 1975, or against an indigent person. An indigent | 7 | | person shall include any person who meets one or more of the | 8 | | following criteria: | 9 | | (1) He or she is receiving assistance under one or more | 10 | | of the following public benefits programs: Supplemental | 11 | | Security Income (SSI), Aid to the Aged, Blind, and Disabled | 12 | | (AABD), Temporary Assistance for Needy Families (TANF), | 13 | | Supplemental Nutrition Assistance Program (SNAP) (formerly | 14 | | Food Stamps), General Assistance, State Transitional | 15 | | Assistance, or State Children and Family Assistance. | 16 | | (2) His or her available income is 125% or less of the | 17 | | current poverty level as established by the United States | 18 | | Department of Health and Human Services, unless the | 19 | | applicant's assets that are not exempt under Part 9 or 10 | 20 | | of Article XII of the Code of Civil Procedure are of a | 21 | | nature and value that the court determines that the | 22 | | applicant is able to pay the fees, costs, and charges. | 23 | | (3) He or she is, in the discretion of the court, | 24 | | unable to proceed in an action without payment of fees, | 25 | | costs, and charges and whose payment of those fees, costs, | 26 | | and charges would result in substantial hardship to the |
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| 1 | | person or his or her family. | 2 | | (4) He or she is an indigent person pursuant to Section | 3 | | 5-105.5 of the Code of Civil Procedure, providing that an | 4 | | "indigent person" means a person whose income is 125% or | 5 | | less of the current official federal poverty guidelines or | 6 | | who is otherwise eligible to receive civil legal services | 7 | | under the Legal Services Corporation Act of 1974. | 8 | | (c) The clerk is entitled to receive the fee specified in | 9 | | this Section, which shall be paid in advance, and managed by | 10 | | the clerk as set out in paragraph (2), except that, for good | 11 | | cause shown, the court may suspend, reduce, or release the | 12 | | costs payable under this Section: | 13 | | (1) For administration of the estate of a decedent | 14 | | (whether testate or intestate) or of a missing person, a | 15 | | fee of $100. | 16 | | (2) The guardianship and advocacy operations fee, as | 17 | | outlined in this Section, shall be in addition to all other | 18 | | fees and charges and assessable as costs. Five percent of | 19 | | the fee shall be retained by the clerk for deposit into the | 20 | | Circuit Court Clerk Operation and Administrative Fund to | 21 | | defray costs of collection and 95% of the fee shall be | 22 | | disbursed within 60 days after receipt by the circuit clerk | 23 | | to the State Treasurer for deposit by the State Treasurer | 24 | | into the Guardianship and Advocacy Fund. | 25 | | Section 15. The Probate Act of 1975 is amended by changing |
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| 1 | | Sections 11a-12 and 11a-20 as follows:
| 2 | | (755 ILCS 5/11a-12) (from Ch. 110 1/2, par. 11a-12)
| 3 | | Sec. 11a-12.
Order of appointment.)
| 4 | | (a) If basis for the
appointment of a guardian as specified | 5 | | in Section 11a-3 is not found,
the court shall dismiss the | 6 | | petition.
| 7 | | (b) If the respondent is adjudged to be disabled and to | 8 | | lack some but not all of the be totally
without capacity as | 9 | | specified in Section 11a-3, and if the court finds that
limited | 10 | | guardianship is necessary for the protection of will not | 11 | | provide sufficient protection for the disabled
person, his or | 12 | | her estate, or both, the court shall appoint a
limited plenary | 13 | | guardian for the respondent's person or estate or both. The
| 14 | | court shall enter a written order stating
the factual basis for | 15 | | its findings and specifying the duties and powers of the | 16 | | guardian and the legal disabilities to which the respondent is | 17 | | subject .
| 18 | | (c) If the respondent is adjudged to be disabled and to be | 19 | | totally without lack some but
not all of the capacity as | 20 | | specified in Section 11a-3, and if the court finds
that limited | 21 | | guardianship will not provide sufficient is necessary for the | 22 | | protection for of the disabled person, his
or her estate, or | 23 | | both, the court shall
appoint a plenary guardian for limited | 24 | | guardian of the respondent's person or estate or both.
The | 25 | | court shall enter a written order stating the factual basis
for |
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| 1 | | its findings and specifying the duties and powers
of the | 2 | | guardian and the legal disabilities to which the respondent is
| 3 | | subject .
| 4 | | (d) The selection of the guardian shall be in the | 5 | | discretion
of the court, which shall give due consideration to | 6 | | the preference of the
disabled person as to a guardian, as well | 7 | | as the qualifications of the
proposed guardian, in making its | 8 | | appointment.
| 9 | | (Source: P.A. 89-396, eff. 8-20-95.)
| 10 | | (755 ILCS 5/11a-20) (from Ch. 110 1/2, par. 11a-20)
| 11 | | Sec. 11a-20.
Termination of adjudication of disability - | 12 | | Revocation
of letters - modification.) (a) Except as provided | 13 | | in subsection (b-5), upon Upon the filing of
a petition by or | 14 | | on behalf of a disabled person or on its own motion, the
court | 15 | | may terminate the adjudication of disability of the ward, | 16 | | revoke the
letters of guardianship of the estate or person, or | 17 | | both, or modify the duties
of the guardian if the ward's | 18 | | capacity to perform the tasks necessary for
the care of his | 19 | | person or the management of his estate has been
demonstrated by | 20 | | clear and convincing evidence. A report or testimony by a
| 21 | | licensed physician is not a prerequisite for termination, | 22 | | revocation or
modification of a guardianship order under this | 23 | | subsection (a) .
| 24 | | (b) Except as provided in subsection (b-5), a A request by | 25 | | the ward or any other person on the ward's behalf,
under this |
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| 1 | | Section may be communicated to the court or judge by any means,
| 2 | | including but not limited to informal letter, telephone call or | 3 | | visit. Upon
receipt of a request from the ward or another | 4 | | person, the court may
appoint a guardian ad litem to | 5 | | investigate and report to the court
concerning the allegations | 6 | | made in conjunction with said request, and if
the ward wishes | 7 | | to terminate, revoke, or modify the guardianship order, to
| 8 | | prepare the ward's petition and to render such other services | 9 | | as the court
directs.
| 10 | | (b-5) Upon the filing of a verified petition by the | 11 | | guardian of the disabled person or the disabled person, the | 12 | | court may terminate the adjudication of disability of the ward, | 13 | | revoke the letters of guardianship of the estate or person, or | 14 | | both, or modify the duties of the guardian if: (i) a report | 15 | | completed in accordance with subsection (a) of Section 11a-9 | 16 | | states that the disabled person is no longer in need of | 17 | | guardianship or that the type and scope of guardianship should | 18 | | be modified; (ii) the disabled person no longer wishes to be | 19 | | under guardianship or desires that the type and scope of | 20 | | guardianship be modified; and (iii) the guardian of the | 21 | | disabled person states that it is in the best interest of the | 22 | | disabled person to terminate the adjudication of disability of | 23 | | the ward, revoke the letters of guardianship of the estate or | 24 | | person, or both, or modify the duties of the guardian, and | 25 | | provides the basis thereof. In a proceeding brought pursuant to | 26 | | this subsection (b-5), the court may terminate the adjudication |
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| 1 | | of disability of the ward, revoke the letters of guardianship | 2 | | of the estate or person, or both, or modify the duties of the | 3 | | guardian, unless it has been demonstrated by clear and | 4 | | convincing evidence that the ward is incapable of performing | 5 | | the tasks necessary for the care of his or her person or the | 6 | | management of his or her estate. | 7 | | (c) Notice of the hearing on a petition under this Section, | 8 | | together
with a copy of the petition, shall be given to the | 9 | | ward, unless he is the
petitioner, and to each and every | 10 | | guardian to whom letters of guardianship
have been issued and | 11 | | not revoked, not less than 14 days before the hearing.
| 12 | | (Source: P.A. 86-605.)".
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