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90_HB3578 755 ILCS 5/11-5.3 755 ILCS 5/11-5.4 755 ILCS 5/11-8.1 755 ILCS 5/11-13.1 Amends the "Minors" Article of the Probate Act. Authorizes a legal private guardian of a minor to designate a standby guardian of the minor or appoint a short-term guardian of the minor if there is no surviving parent of the minor. LRB9010190DJcdA LRB9010190DJcdA 1 AN ACT to amend the Probate Act of 1975 by changing 2 Sections 11-5.3, 11-5.4, 11-8.1, and 11-13.1. 3 Be it enacted by the People of the State of Illinois, 4 represented in the General Assembly: 5 Section 5. The Probate Act of 1975 is amended by 6 changing Sections 11-5.3, 11-5.4, 11-8.1, and 11-13.1 as 7 follows: 8 (755 ILCS 5/11-5.3) 9 Sec. 11-5.3. Appointment of standby guardian. 10 (a) A parent, adoptive parent, or adjudicated parent,11 whose parental rights have not been terminated, or the legal 12 private guardian of the person of a minor if there is no 13 surviving parent, may designate in any writing, including a 14 will, a person qualified to act under Section 11-3 to be 15 appointed as standby guardian of the person or estate, or 16 both, of an unmarried minor or of a child likely to be born. 17 A parent, adoptive parent, or adjudicated parent,whose 18 parental rights have not been terminated, or the legal 19 private guardian of the person of a minor if there is no 20 surviving parent, or a standby guardian of an unmarried minor 21 or of a child likely to be born may designate in any writing, 22 including a will, a person qualified to act under Section 23 11-3 to be appointed as successor standby guardian of the 24 minor's person or estate, or both. The designation must be 25 witnessed by 2 or more credible witnesses at least 18 years 26 of age, neither of whom is the person designated as the 27 standby guardian. The designation may be proved by any 28 competent evidence. If the designation is executed and 29 attested in the same manner as a will, it shall have prima 30 facie validity. The designation of a standby guardian or 31 successor standby guardian does not affect the rights of the -2- LRB9010190DJcdA 1 other parent in the minor. 2 (b) Upon the filing of a petition for the appointment of 3 a standby guardian, the court may appoint a standby guardian 4 of the person or estate, or both, of a minor as the court 5 finds to be in the best interest of the minor. 6 (c) The court lacks jurisdiction to proceed on a 7 petition for the appointment of a standby guardian of a minor 8 if (i) the minor has a living parent, adoptive parent or 9 adjudicated parent, whose parental rights have not been 10 terminated, whose whereabouts are known, and who is willing 11 and able to make and carry out day-to-day child care 12 decisions concerning the minor, unless the parent or parents 13 consent to the appointment or, after receiving notice of the 14 hearing under Section 11-10.1, fail to object to the 15 appointment at the hearing on the petition or (ii) there is a 16 guardian for the minor appointed by a court of competent 17 jurisdiction, except that if there is no surviving parent and 18 a legal private guardian of the person of the minor has been 19 appointed, then the court has jurisdiction to proceed on the 20 petition for appointment of a standby guardian for the minor. 21 There shall be a rebuttable presumption that a parent of a 22 minor is willing and able to make and carry out day-to-day 23 child care decisions concerning the minor, but the 24 presumption may be rebutted by a preponderance of the 25 evidence. 26 (d) The standby guardian shall take and file an oath or 27 affirmation that the standby guardian will faithfully 28 discharge the duties of the office of standby guardian 29 according to law, and shall file in and have approved by the 30 court a bond binding the standby guardian so to do, but shall 31 not be required to file a bond until the standby guardian 32 assumes all duties as guardian of the minor under Section 33 11-13.1. 34 (e) The designation of a standby guardian may, but need -3- LRB9010190DJcdA 1 not, be in the following form: 2 DESIGNATION OF STANDBY GUARDIAN 3 [IT IS IMPORTANT TO READ THE FOLLOWING INSTRUCTIONS: 4 A standby guardian is someone who has been appointed by 5 the court as the person who will act as guardian of the child 6 when the child's parents, or the legal private guardian of 7 the person of the child if there is no surviving parent, die 8 or are no longer willing or able to make and carry out 9 day-to-day child care decisions concerning the child. By 10 properly completing this form, a parent or the legal private 11 guardian of the person of the child if there is no surviving 12 parent, is naming the person that the parent or the legal 13 private guardian wants to be appointed as the standby 14 guardian of the child or childrenof the parent. Both parents 15 of a child may join together and co-sign this form. Signing 16 the form does not appoint the standby guardian; to be 17 appointed, a petition must be filed in and approved by the 18 court.] 19 1. Parent (or legal private guardian if there is no 20 surviving parent) and Children. I, (insert name of 21 designating parent or legal private guardian if there is 22 no surviving parent), currently residing at (insert 23 address of designating parent or legal private guardian), 24 am a parent (or, there being no surviving parent, the 25 legal private guardian of the person) of the following 26 child or children (or of a child likely to be born): 27 (insert name and date of birth of each child, or insert 28 the words "not yet born" to designate a standby guardian 29 for a child likely to be born and the child's expected 30 date of birth). 31 2. Standby Guardian. I hereby designate the 32 following person to be appointed as standby guardian for 33 themychild or children listed above (insert name and -4- LRB9010190DJcdA 1 address of person designated). 2 3. Successor Standby Guardian. If the person named 3 in item 2 above cannot or will not act as standby 4 guardian, I designate the following person to be 5 appointed as successor standby guardian for themychild 6 or children: (insert name and address of person 7 designated). 8 4. Date and Signature. This designation is made 9 this (insert day) day of (insert month and year). 10 Signed: (designating parent or legal private 11 guardian if there is no surviving parent) 12 5. Witnesses. I saw the parent (or, if there is no 13 surviving parent, the legal private guardian of the 14 person of the child) sign this designation or the parent 15 (or, if there is no surviving parent, the legal private 16 guardian of the person of the child) told me that he or 17 shetheparent signed this designation. Then I signed the 18 designation as a witness in the presence of the parent 19 (or the legal private guardian). I am not designated in 20 this instrument to act as a standby guardian for the 21parent'schild or children. (insert space for names, 22 addresses, and signatures of 2 witnesses). 23 (Source: P.A. 88-529.) 24 (755 ILCS 5/11-5.4) 25 Sec. 11-5.4. Short-term guardian. 26 (a) A parent, adoptive parent, or adjudicated parent,27 whose parental rights have not been terminated, or the legal 28 private guardian of the person of a minor if there is no 29 surviving parent, may appoint in writing, without court 30 approval, a short-term guardian of an unmarried minor or a 31 child likely to be born. The written instrument appointing a 32 short-term guardian shall be dated and shall identify the 33 appointing parent or legal private guardian, the minor, and -5- LRB9010190DJcdA 1 the person appointed to be the short-term guardian. The 2 written instrument shall be signed by, or at the direction 3 of, the appointing parent in the presence of at least 2 4 credible witnesses at least 18 years of age, neither of whom 5 is the person appointed as the short-term guardian. The 6 person appointed as the short-term guardian shall also sign 7 the written instrument, but need not sign at the same time as 8 the appointing parent. 9 (b) A parent shall not appoint a short-term guardian of 10 a minor if (i) the minor has another living parent, adoptive 11 parent or adjudicated parent, whose parental rights have not 12 been terminated, whose whereabouts are known, and who is 13 willing and able to make and carry out day-to-day child care 14 decisions concerning the minor, unless the nonappointing 15 parent consents to the appointment by signing the written 16 instrument of appointment or (ii) there is a guardian for the 17 minor appointed by a court of competent jurisdiction, except 18 that if there is no surviving parent and a legal private 19 guardian of the person of the minor has been appointed, then 20 the legal private guardian may appoint a short-term guardian. 21 (c) The appointment of the short-term guardian is 22 effective immediately upon the date the written instrument is 23 executed, unless the written instrument provides for the 24 appointment to become effective upon a later specified date 25 or event. The short-term guardian shall have authority to 26 act as guardian of the minor as provided in Section 11-13.2 27 for a period of 60 days from the date the appointment is 28 effective, unless the written instrument provides for the 29 appointment to terminate upon an earlier specified date or 30 event. Only one written instrument appointing a short-term 31 guardian may be in force at any given time. 32 (d) Every appointment of a short-term guardian may be 33 amended or revoked by the appointing parent, or by the legal 34 private guardian of the person of the minor if there is no -6- LRB9010190DJcdA 1 surviving parent, at any time and in any manner communicated 2 to the short-term guardian or to any other person. Any 3 person other than the short-term guardian to whom a 4 revocation or amendment is communicated or delivered shall 5 make all reasonable efforts to inform the short-term guardian 6 of that fact as promptly as possible. 7 (e) The appointment of a short-term guardian or 8 successor short-term guardian does not affect the rights of 9 the other parent in the minor. 10 (f) The written instrument appointing a short-term 11 guardian may, but need not, be in the following form: 12 APPOINTMENT OF SHORT-TERM GUARDIAN 13 [IT IS IMPORTANT TO READ THE FOLLOWING INSTRUCTIONS: 14 By properly completing this form, a parent, or the legal 15 private guardian of the person of the child if there is no 16 surviving parent, is appointing a guardian of a child of the 17 parent (or a minor ward of the legal private guardian, as the 18 case may be) for a period of up to 60 days. A separate form 19 should be completed for each child. The person appointed as 20 the guardian must sign the form, but need not do so at the 21 same time as the parent or parents or legal private guardian. 22 This form may not be used to appoint a guardian if there 23 is a guardian already appointed for the child, except that if 24 there is no surviving parent and a legal private guardian of 25 the person of the child has been appointed, then the legal 26 private guardian may use this form to appoint a short-term 27 guardian. Both living parents of a child may together 28 appoint a guardian of the child, or, if there is no surviving 29 parent, the legal private guardian of the person of the child 30 may appoint a guardian of the child, for a period of up to 60 31 days through the use of this form. If the short-term guardian 32 is appointed by both living parents of the child, the parents 33 need not sign the form at the same time.] -7- LRB9010190DJcdA 1 1. Parent (or legal private guardian if there is no 2 surviving parent) and Child. I, (insert name of 3 appointing parent or legal private guardian if there is 4 no surviving parent), currently residing at (insert 5 address of appointing parent or legal private guardian), 6 am a parent (or, there being no surviving parent, the 7 legal private guardian of the person) of the following 8 child (or of a child likely to be born): (insert name 9 and date of birth of child, or insert the words "not yet 10 born" to appoint a short-term guardian for a child likely 11 to be born and the child's expected date of birth). 12 2. Guardian. I hereby appoint the following person 13 as the short-term guardian for themychild: (insert name 14 and address of appointed person). 15 3. Effective date. This appointment becomes 16 effective: (check one if you wish it to be applicable) 17 ( ) On the date that I state in writing that I 18 am no longer either willing or able to make and 19 carry out day-to-day child care decisions concerning 20 themychild. 21 ( ) On the date that a physician familiar with 22 my condition certifies in writing that I am no 23 longer willing or able to make and carry out 24 day-to-day child care decisions concerning themy25 child. 26 ( ) On the date that I am admitted as an 27 in-patient to a hospital or other health care 28 institution. 29 ( ) On the following date: (insert date). 30 ( ) Other: (insert other). 31 [NOTE: If this item is not completed, the appointment is 32 effective immediately upon the date the form is signed and 33 dated below.] 34 4. Termination. This appointment shall terminate -8- LRB9010190DJcdA 1 60 days after the effective date, unless it terminates 2 sooner as determined by the event or date I have 3 indicated below: (check one if you wish it to be 4 applicable) 5 ( ) On the date that I state in writing that I 6 am willing and able to make and carry out day-to-day 7 child care decisions concerning themychild. 8 ( ) On the date that a physician familiar with 9 my condition certifies in writing that I am willing 10 and able to make and carry out day-to-day child care 11 decisions concerning themychild. 12 ( ) On the date that I am discharged from the 13 hospital or other health care institution where I 14 was admitted as an in-patient, which established the 15 effective date. 16 ( ) On the date which is (state a number of 17 days, but no more than 60 days) days after the 18 effective date. 19 ( ) Other: (insert other). 20 [NOTE: If this item is not completed, the appointment will 21 be effective for a period of 60 days, beginning on the 22 effective date.] 23 5. Date and signature of appointing parent or legal 24 private guardian if there is no surviving parent. This 25 appointment is made this (insert day) day of (insert 26 month and year). 27 Signed: (appointing parent) 28 6. Witnesses. I saw the parent (or, if there is no 29 surviving parent, the legal private guardian of the 30 person of the child) sign this instrument or I saw the 31 parent (or, if there is no surviving parent, the legal 32 private guardian of the person of the child) direct 33 someone to sign this instrument for the parent (or the 34 legal private guardian). Then I signed this instrument as -9- LRB9010190DJcdA 1 a witness in the presence of the parent (or the legal 2 private guardian). I am not appointed in this instrument 3 to act as the short-term guardian for theparent'schild. 4 (Insert space for names, addresses, and signatures of 2 5 witnesses) 6 7. Acceptance of short-term guardian. I accept 7 this appointment as short-term guardian on this (insert 8 day) day of (insert month and year). 9 Signed: (short-term guardian) 10 8. Consent of child's other parent. I, (insert 11 name of the child's other living parent), currently 12 residing at (insert address of child's other living 13 parent), hereby consent to this appointment on this 14 (insert day) day of (insert month and year). 15 Signed: (consenting parent) 16 [NOTE: The signature of a consenting parent is not necessary 17 if one of the following applies: (i) the child's other parent 18 has died; or (ii) the whereabouts of the child's other parent 19 are not known; or (iii) the child's other parent is not 20 willing or able to make and carry out day-to-day child care 21 decisions concerning the child; or (iv) the child's parents 22 were never married and no court has issued an order 23 establishing parentage.] 24 (Source: P.A. 88-529; 88-670, eff. 12-2-94.) 25 (755 ILCS 5/11-8.1) 26 Sec. 11-8.1. Petition for standby guardian of minor. The 27 petition for appointment of a standby guardian of the person 28 or the estate, or both, of a minor must state, if known: (a) 29 the name, date of birth, and residence of the minor; (b) the 30 names and post office addresses of the nearest relatives of 31 the minor in the following order: (1) the parents, if any; if 32 none, (2) the adult brothers and sisters, if any; if none, 33 (3) the nearest adult kindred; (c) the name and post office -10- LRB9010190DJcdA 1 address of the person having custody of the minor; (d) the 2 name, post office address, and, in case of any individual, 3 the age and occupation of the proposed standby guardian; (e) 4 the facts concerning the consent of the minor's parent or 5 parents, or the legal private guardian of the person of the 6 minor if there is no surviving parent, to the appointment of 7 the standby guardian, or the willingness and ability of the 8 minor's parent or parents, if any, or the legal private 9 guardian of the person of the minor if there is no surviving 10 parent, to make and carry out day-to-day child care decisions 11 concerning the minor; (f) the facts concerning the execution 12 or admission to probate of the written designation of the 13 standby guardian, if any, a copy of which shall be attached 14 to or filed with the petition; and (g) the facts concerning 15 any juvenile, adoption, parentage, dissolution, or 16 guardianship court actions pending concerning the minor or 17 the parents of the minor and whether any guardian is 18 currently acting for the minor. 19 (Source: P.A. 88-529.) 20 (755 ILCS 5/11-13.1) 21 Sec. 11-13.1. Duties of standby guardian of a minor. 22 (a) Before a standby guardian of a minor may act, the 23 standby guardian must be appointed by the court of the proper 24 county and, in the case of a standby guardian of the minor's 25 estate, the standby guardian must give the bond prescribed in 26 subsection (d) of Section 11-5.3 and Section 12-2. 27 (b) The standby guardian shall not have any duties or 28 authority to act until the standby guardian receives 29 knowledge (i) of the death or consent of the minor's parent 30 or parents, or of the legal private guardian of the person of 31 the minor if there is no surviving parent, or (ii) the 32 inability of the minor's parent or parents, or of the legal 33 private guardian of the person of the minor if there is no -11- LRB9010190DJcdA 1 surviving parent, to make and carry out day-to-day child care 2 decisions concerning the minor for whom the standby guardian 3 has been appointed. This inabilityof the minor's parent or4parentsto make and carry out day-to-day child care decisions 5 may be communicated either by the parent's (or, if there is 6 no surviving parent, the legal private guardian's) own 7 admission or by the written certification of the parent's or 8 legal private guardian's attending physician. Immediately 9 upon receipt of that knowledge, the standby guardian shall 10 assume all duties as guardian of the minor as previously 11 determined by the order appointing the standby guardian, and 12 as set forth in Section 11-13, and the standby guardian of 13 the person shall have the authority to act as guardian of the 14 person without direction of court for a period of up to 60 15 days, provided that the authority of the standby guardian may 16 be limited or terminated by a court of competent 17 jurisdiction. 18 (c) Within 60 days of the standby guardian's receipt of 19 knowledge of (i) the death or consent of the minor's parent 20 or parents or legal private guardian,or (ii) the inability 21 of the minor's parent or parents or legal private guardian to 22 make and carry out day-to-day child care decisions concerning 23 the minor, the standby guardian shall file or cause to be 24 filed a petition for the appointment of a guardian of the 25 person or estate, or both, of the minor under Section 11-5. 26 (Source: P.A. 88-529.)