Full Text of SB2758 103rd General Assembly
SB2758sam001 103RD GENERAL ASSEMBLY | Sen. Karina Villa Filed: 3/8/2024 | | 10300SB2758sam001 | | LRB103 36614 JRC 70543 a |
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| 1 | | AMENDMENT TO SENATE BILL 2758
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 2758 by replacing | 3 | | everything after the enacting clause with the following: | 4 | | "Section 5. The Probate Act of 1975 is amended by changing | 5 | | Section 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 | 9 | | direction of the court, the guardian of the person shall have | 10 | | custody of the ward and the ward's minor and adult dependent | 11 | | children and shall procure for them and shall make provision | 12 | | for their support, care, comfort, health, education and | 13 | | maintenance, and professional services as are appropriate, but | 14 | | the ward's spouse may not be deprived of the custody and | 15 | | education of the ward's minor and adult dependent children, | 16 | | without the consent of the spouse, unless the court finds that |
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| 1 | | the spouse is not a fit and competent person to have that | 2 | | custody and education. The guardian shall assist the ward in | 3 | | the development of maximum self-reliance and independence. The | 4 | | guardian of the person may petition the court for an order | 5 | | directing the guardian of the estate to pay an amount | 6 | | periodically for the provision of the services specified by | 7 | | the court order. If the ward's estate is insufficient to | 8 | | provide for education and the guardian of the ward's person | 9 | | fails to provide education, the court may award the custody of | 10 | | the ward to some other person for the purpose of providing | 11 | | education. If a person makes a settlement upon or provision | 12 | | for the support or education of a ward, the court may make an | 13 | | order for the visitation of the ward by the person making the | 14 | | settlement or provision as the court deems proper. A guardian | 15 | | of the person may not admit a ward to a mental health facility | 16 | | except at the ward's request as provided in Article IV of the | 17 | | Mental Health and Developmental Disabilities Code and unless | 18 | | the ward has the capacity to consent to such admission as | 19 | | provided in Article IV of the Mental Health and Developmental | 20 | | Disabilities Code. | 21 | | (a-3) If a guardian of an estate has not been appointed, | 22 | | the guardian of the person may, without an order of court, | 23 | | open, maintain, and transfer funds to an ABLE account on | 24 | | behalf of the ward and the ward's minor and adult dependent | 25 | | children as specified under Section 16.6 of the State | 26 | | Treasurer Act. |
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| 1 | | (a-5) If the ward filed a petition for dissolution of | 2 | | marriage under the Illinois Marriage and Dissolution of | 3 | | Marriage Act before the ward was adjudicated a person with a | 4 | | disability under this Article, the guardian of the ward's | 5 | | person and estate may maintain that action for dissolution of | 6 | | marriage on behalf of the ward. Upon petition by the guardian | 7 | | of the ward's person or estate, the court may authorize and | 8 | | direct a guardian of the ward's person or estate to file a | 9 | | petition for dissolution of marriage or to file a petition for | 10 | | legal separation or declaration of invalidity of marriage | 11 | | under the Illinois Marriage and Dissolution of Marriage Act on | 12 | | behalf of the ward if the court finds by clear and convincing | 13 | | evidence that the relief sought is in the ward's best | 14 | | interests. In making its determination, the court shall | 15 | | consider the standards set forth in subsection (e) of this | 16 | | Section. | 17 | | (a-10) A ward who understands the nature, effect, duties, | 18 | | and obligations of marriage retains the fundamental right to | 19 | | marriage. Prior consent of the guardian of the person or | 20 | | estate or approval of the court is not required for the ward to | 21 | | enter into a marriage. The ward, guardian of the person, or | 22 | | guardian of the estate may petition for the approval or | 23 | | ratification of marriage. Upon petition by the guardian of the | 24 | | ward's person or estate, the court may authorize and direct a | 25 | | guardian of the ward's person or estate to consent, on behalf | 26 | | of the ward, to the ward's marriage pursuant to Part II of the |
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| 1 | | Illinois Marriage and Dissolution of Marriage Act if the court | 2 | | finds by clear and convincing evidence that the marriage is in | 3 | | the ward's best interests. In making its determination, the | 4 | | court shall consider the standards set forth in subsection (e) | 5 | | of this Section. Upon presentation of a court order | 6 | | authorizing and directing a guardian of the ward's person and | 7 | | estate to consent to the ward's marriage, the county clerk | 8 | | shall accept the guardian's application, appearance, and | 9 | | signature on behalf of the ward for purposes of issuing a | 10 | | license to marry under Section 203 of the Illinois Marriage | 11 | | and Dissolution of Marriage Act. | 12 | | (a-15) A court may remove the ward's right to marriage if | 13 | | the request for removal is brought at the time of the petition | 14 | | for appointment of a limited or plenary guardian. A court may | 15 | | remove the ward's right to marriage based on evidence | 16 | | presented at a hearing under Section 11a-11 if it finds, while | 17 | | taking into consideration the expressed preferences of the | 18 | | ward, by clear and convincing evidence that the ward lacks the | 19 | | capacity to understand the nature, effect, duties, and | 20 | | obligations of marriage or if the court finds other good | 21 | | cause, by clear and convincing evidence, that the right to | 22 | | marriage should be removed. A guardian may petition the court | 23 | | to remove the right to marriage at any time during the | 24 | | guardianship if not addressed at the time of appointment. Any | 25 | | marriage entered into after the removal of the right to | 26 | | marriage is void unless the court had reinstated the right to |
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| 1 | | marriage. A ward, guardian of the person, or guardian of the | 2 | | estate may seek judicial approval to reinstate the right to | 3 | | marriage and, if the court finds that the right to marriage | 4 | | should be reinstated, the court may enter an order declaring | 5 | | the right restored. | 6 | | (a-20) A guardian may petition the probate court for an | 7 | | order voiding the marriage for the reason that the marriage | 8 | | will result in substantial harm to the ward or the ward's | 9 | | estate; this petition must be proved by clear and convincing | 10 | | evidence and the guardian bears the burden of proof. Any | 11 | | action brought to void the marriage, pursuant to this | 12 | | provision, is brought before the probate court. An action to | 13 | | void the marriage survives the death of the ward and may be | 14 | | brought as an action in an estate administration. | 15 | | (b) If the court directs, the guardian of the person shall | 16 | | file with the court at intervals indicated by the court, a | 17 | | report that shall state briefly: (1) the current mental, | 18 | | physical, and social condition of the ward and the ward's | 19 | | minor and adult dependent children; (2) their present living | 20 | | arrangement, and a description and the address of every | 21 | | residence where they lived during the reporting period and the | 22 | | length of stay at each place; (3) a summary of the medical, | 23 | | educational, vocational, and other professional services given | 24 | | to them; (4) a resume of the guardian's visits with and | 25 | | activities on behalf of the ward and the ward's minor and adult | 26 | | dependent children; (5) a recommendation as to the need for |
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| 1 | | continued guardianship; (6) any other information requested by | 2 | | the court or useful in the opinion of the guardian. The Office | 3 | | of the State Guardian shall assist the guardian in filing the | 4 | | report when requested by the guardian. The court may take such | 5 | | action as it deems appropriate pursuant to the report. | 6 | | (c) Absent court order pursuant to the Illinois Power of | 7 | | Attorney Act directing a guardian to exercise powers of the | 8 | | principal under an agency that survives disability, the | 9 | | guardian has no power, duty, or liability with respect to any | 10 | | personal or health care matters covered by the agency. This | 11 | | subsection (c) applies to all agencies, whenever and wherever | 12 | | executed. | 13 | | (d) A guardian acting as a surrogate decision maker under | 14 | | the Health Care Surrogate Act shall have all the rights of a | 15 | | surrogate under that Act without court order including the | 16 | | right to make medical treatment decisions such as decisions to | 17 | | forgo or withdraw life-sustaining treatment. Any decisions by | 18 | | the guardian to forgo or withdraw life-sustaining treatment | 19 | | that are not authorized under the Health Care Surrogate Act | 20 | | shall require a court order. Nothing in this Section shall | 21 | | prevent an agent acting under a power of attorney for health | 22 | | care from exercising his or her authority under the Illinois | 23 | | Power of Attorney Act without further court order, unless a | 24 | | court has acted under Section 2-10 of the Illinois Power of | 25 | | Attorney Act. If a guardian is also a health care agent for the | 26 | | ward under a valid power of attorney for health care, the |
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| 1 | | guardian acting as agent may execute his or her authority | 2 | | under that act without further court order. | 3 | | (e) Decisions made by a guardian on behalf of a ward shall | 4 | | be made in accordance with the following standards for | 5 | | decision making. The guardian shall consider the ward's | 6 | | current preferences to the extent the ward has the ability to | 7 | | participate in decision making when those preferences are | 8 | | known or reasonably ascertainable by the guardian. Decisions | 9 | | by the guardian shall conform to the ward's current | 10 | | preferences: (1) unless the guardian reasonably believes that | 11 | | doing so would result in substantial harm to the ward's | 12 | | welfare or personal or financial interests; and (2) so long as | 13 | | such decisions give substantial weight to what the ward, if | 14 | | competent, would have done or intended under the | 15 | | circumstances, taking into account evidence that includes, but | 16 | | is not limited to, the ward's personal, philosophical, | 17 | | religious and moral beliefs, and ethical values relative to | 18 | | the decision to be made by the guardian. Where possible, the | 19 | | guardian shall determine how the ward would have made a | 20 | | decision based on the ward's previously expressed preferences, | 21 | | and make decisions in accordance with the preferences of the | 22 | | ward. If the ward's wishes are unknown and remain unknown | 23 | | after reasonable efforts to discern them, or if the guardian | 24 | | reasonably believes that a decision made in conformity with | 25 | | the ward's preferences would result in substantial harm to the | 26 | | ward's welfare or personal or financial interests, the |
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| 1 | | decision shall be made on the basis of the ward's best | 2 | | interests as determined by the guardian. In determining the | 3 | | ward's best interests, the guardian shall weigh the reason for | 4 | | and nature of the proposed action, the benefit or necessity of | 5 | | the action, the possible risks and other consequences of the | 6 | | proposed action, and any available alternatives and their | 7 | | risks, consequences and benefits, and shall take into account | 8 | | any other information, including the views of family and | 9 | | friends, that the guardian believes the ward would have | 10 | | considered if able to act for herself or himself. | 11 | | (f) Upon petition by any interested person (including the | 12 | | standby or short-term guardian), with such notice to | 13 | | interested persons as the court directs and a finding by the | 14 | | court that it is in the best interests of the person with a | 15 | | disability, the court may terminate or limit the authority of | 16 | | a standby or short-term guardian or may enter such other | 17 | | orders as the court deems necessary to provide for the best | 18 | | interests of the person with a disability. The petition for | 19 | | termination or limitation of the authority of a standby or | 20 | | short-term guardian may, but need not, be combined with a | 21 | | petition to have another guardian appointed for the person | 22 | | with a disability. | 23 | | (g)(1) Unless there is a court order to the contrary, the | 24 | | guardian, consistent with the standards set forth in | 25 | | subsection (e) of this Section, shall use reasonable efforts | 26 | | to notify the ward's known adult children, who have requested |
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| 1 | | notification and provided contact information, of the ward's | 2 | | admission to a hospital, hospice, or palliative care program, | 3 | | the ward's death, and the arrangements for the disposition of | 4 | | the ward's remains. | 5 | | (2) If a guardian unreasonably prevents an adult child, | 6 | | spouse, adult grandchild, parent, or adult sibling of the ward | 7 | | from visiting the ward, the court, upon a verified petition, | 8 | | may order the guardian to permit visitation between the ward | 9 | | and the adult child, spouse, adult grandchild, parent, or | 10 | | adult sibling. In making its determination, the court shall | 11 | | consider the standards set forth in subsection (e) of this | 12 | | Section. The court shall not allow visitation if the court | 13 | | finds that the ward has capacity to evaluate and communicate | 14 | | decisions regarding visitation and expresses a desire not to | 15 | | have visitation with the petitioner. This subsection (g) does | 16 | | not apply to duly appointed public guardians or the Office of | 17 | | State Guardian. | 18 | | (Source: P.A. 101-329, eff. 8-9-19; 102-72, eff. 1-1-22; | 19 | | 102-258, eff. 8-6-21; 102-813, eff. 5-13-22.)". |
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