SB1612 98TH GENERAL ASSEMBLY

LRB098 10025 HEP 40184 b

98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
SB1612

Introduced 2/13/2013, by Sen. Ira I. Silverstein

SYNOPSIS AS INTRODUCED:

20 ILCS 3955/32	from Ch. 91 1/2, par. 732
755 ILCS 5/11a-12	from Ch. 110 1/2, par. 11a-12
755 ILCS 5/13-1	from Ch. 110 1/2, par. 13-1
755 ILCS 5/13-1.3 new
755 ILCS 5/13-5	from Ch. 110 1/2, par. 13-5

Amends the Guardianship and Advocacy Act. Provides that the State Guardian shall not be appointed as guardian for a person whose primary diagnosis is mental illness. Provides that each ward of the State Guardian who was adjudicated disabled before the effective date of the amendatory Act and has a primary diagnosis of mental illness shall be the subject of a review hearing and shall be considered eligible for restoration of rights unless evidence demonstrates, by a clear and convincing standard, that guardianship is still required for the ward and that the State Guardian is the only available and suitable guardian. Amends the Probate Act of 1975. Provides that an order appointing a guardian shall implement the least restrictive alternative, maximize the disabled person's autonomy, and exercise authority over the disabled person only as necessary. Provides that in counties having a population of 1,000,000 or less, in which there is no currently serving public guardian or in which there is a public guardian serving under an expired term of office, the Governor shall, within 90 days after the effective date of the amendatory Act, appoint the Office of State guardian as the public guardian. Provides that in counties having a population of 1,000,000 or less and upon the expiration of the public guardian's term, the State guardian shall be appointed the public guardian.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning guardians.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Guardianship and Advocacy Act is amended by changing Section 32 as follows:

(20 ILCS 3955/32) (from Ch. 91 1/2, par. 732)

Sec. 32. Powers and duties of State Guardian; service limitation; review hearings.

(a) The State Guardian shall have the same powers and duties as a private guardian as provided in Article XIa of the Probate Act of 1975, approved August 7, 1975. The State Guardian shall not provide direct residential services to its wards. The State Guardian shall visit and consult with its wards at least four times a year for as long as the guardianship continues. On and after the effective date of this amendatory Act of the 98th General Assembly, the State Guardian may not be appointed as guardian for a person whose primary diagnosis is mental illness within the meaning of Section 11a-2 of the Probate Act of 1975.

(b) Each ward of the State Guardian who was adjudicated disabled before the effective date of this amendatory Act of the 98th General Assembly and has a primary diagnosis of mental illness shall be the subject of a review hearing in either the county in which the case was established or in which the ward now resides. The court shall appoint a guardian ad litem or advocate to represent the interests of the ward at this hearing, and the State Guardian shall be the petitioner. As soon as practical after the effective date of this amendatory Act of the 98th General Assembly, the State Guardian shall petition under this Section. At the hearing, a ward with a primary diagnosis of mental illness shall be considered eligible for the restoration of his or her rights unless evidence demonstrates, by a clear and convincing standard, that guardianship is still required for the ward with mental illness and that the State Guardian is the only available and suitable guardian. The court shall determine the appropriateness of the restoration of the ward's legal rights and the termination of the adjudication of disability under Section 11a-20 of the Probate Act of 1975. If the court determines that guardianship is still required, it shall consider whether another party may be suitable to serve as guardian. If the court continues the guardianship with the State Guardian, the court shall enter findings of fact in accordance with Section 31 of this Act. The court may also determine that further review under this Section is no longer required.

(Source: P.A. 80-1416.)

Section 10. The Probate Act of 1975 is amended by changing Sections 11a-12, 13-1, and 13-5 and by adding Section 13-1.3 as follows:

(755 ILCS 5/11a-12) (from Ch. 110 1/2, par. 11a-12)

Sec. 11a-12. Order of appointment.)

(a) If basis for the appointment of a guardian as specified in Section 11a-3 is not found, the court shall dismiss the petition. If a basis for the appointment of a guardian is found, the court shall issue orders that implement the least restrictive alternative, maximize the alleged disabled person's right to self-determination and autonomy, and exercise authority only to the extent necessitated by the alleged disabled person's limitations. In determining the least restrictive alternative, the court shall consider options that allow the ward to live, learn, and work in a setting that places as few limits as possible on the ward's rights and personal freedom as appropriate to meet the needs of the ward.

(b) If the respondent is adjudged to be disabled and to lack some but not all of the capacity as specified in Section 11a-3, and if the court finds that guardianship is necessary for the protection of the disabled person, his or her estate, or both, the court shall appoint a limited guardian of for the respondent's person or estate or both. The court shall enter a written order stating the factual basis for its findings and specifying the duties and powers of the guardian and the legal disabilities to which the respondent is subject. If guardianship is found to be necessary, the court shall ensure that limited guardianship is strongly favored and that plenary guardianship is applied only as a last resort, consistent with subsection (c) of this Section.

(c) If the respondent is adjudged to be disabled and to be totally without capacity as specified in Section 11a-3, and if the court finds that limited guardianship will not provide sufficient protection for the disabled person, his or her estate, or both, the court shall appoint a plenary guardian for the respondent's person or estate or both. The court shall enter a written order stating the factual basis for its findings.

(d) The selection of the guardian shall be in the discretion of the court, which shall give due consideration to the preference of the disabled person as to a guardian, as well as the qualifications of the proposed guardian, in making its appointment.

(Source: P.A. 97-1093, eff. 1-1-13.)

(755 ILCS 5/13-1) (from Ch. 110 1/2, par. 13-1)

Sec. 13-1. Appointment and term of public administrator and public guardian.) Except as provided in Sections Section 13-1.1 and 13-1.3, before the first Monday of December, 1977 and every 4 years thereafter, and as often as vacancies occur, the Governor, by and with the advice and consent of the Senate, shall appoint in each county a suitable person to serve as public administrator and a suitable person to serve as public guardian of the county. The Governor may appoint the same person to serve as public guardian and public administrator in one or more counties. In considering the number of counties of service for any prospective public guardian or public administrator the Governor may consider the population of the county and the ability of the prospective public guardian or public administrator to travel to multiple counties and manage estates in multiple counties. Each person so appointed holds his office for 4 years from the first Monday of December, 1977 and every 4 years thereafter or until his successor is appointed and qualified.

(Source: P.A. 96-752, eff. 1-1-10.)

(755 ILCS 5/13-1.3 new)

Sec. 13-1.3. Transition to Office of State Guardian. In counties having a population of 1,000,000 or less, and in which there is no currently serving public guardian or in which there is a public guardian serving under an expired term of office, the Governor shall, within 90 days after the effective date of this amendatory Act of the 98th General Assembly, appoint the Office of State Guardian as the public guardian. Subsequently, in counties having a population of 1,000,000 or less and upon the expiration of the public guardian's term, the State Guardian shall be appointed as the public guardian. The State Guardian appointed as public guardian shall serve continuously and is not be subject to 4 year terms of appointment. In cases in which the State Guardian serves as the public guardian, the State Guardian shall assume only the duties described in Sections 30 and 32 of the Guardianship and Advocacy Act and shall be otherwise subject to the provisions of the Guardianship and Advocacy Act and not this Article XIII.

(755 ILCS 5/13-5) (from Ch. 110 1/2, par. 13-5)

Sec. 13-5. Powers and duties of public guardian.) The court may appoint the public guardian as the guardian of any disabled adult who is in need of a public guardian and whose estate exceeds $100,000 and is located in a county having a population in excess of 1,000,000 $25,000. When a disabled adult who has a smaller estate is in need of guardianship services in a county having a population in excess of 1,000,000, the court shall appoint the State guardian pursuant to Section 30 of the Guardianship and Advocacy Act. If the public guardian is appointed guardian of a disabled adult and the estate of the disabled adult is thereafter reduced to less than $100,000 $25,000, the court may, upon the petition of the public guardian and the approval by the court of a final accounting of the disabled adult's estate, discharge the public guardian and transfer the guardianship to the State guardian. The public guardian shall serve not less than 14 days' notice to the State guardian of the hearing date regarding the transfer. When appointed by the court, the public guardian has the same powers and duties as other guardians appointed under this Act, with the following additions and modifications:

(a) The public guardian shall monitor the ward and his care and progress on a continuous basis. Monitoring shall at minimum consist of monthly contact with the ward, and the receipt of periodic reports from all individuals and agencies, public or private, providing care or related services to the ward.

(b) Placement of a ward outside of the ward's home may be made only after the public guardian or his representative has visited the facility in which placement is proposed.

(c) The public guardian shall prepare an inventory of the ward's belongings and assets and shall maintain insurance on all of the ward's real and personal property, unless the court determines, and issues an order finding, that (1) the real or personal property lacks sufficient equity, (2) the estate lacks sufficient funds to pay for insurance, or (3) the property is otherwise uninsurable. No personal property shall be removed from the ward's possession except for storage pending final placement or for liquidation in accordance with this Act.

(d) The public guardian shall make no substantial distribution of the ward's estate without a court order.

(e) The public guardian may liquidate assets of the ward to pay for the costs of the ward's care and for storage of the ward's personal property only after notice of such pending action is given to all potential heirs at law, unless notice is waived by the court; provided, however, that a person who has been so notified may elect to pay for care or storage or to pay fair market value of the asset or assets sought to be sold in lieu of liquidation.

(f) Real property of the ward may be sold at fair market value after an appraisal of the property has been made by a licensed appraiser; provided, however, that the ward's residence may be sold only if the court finds that the ward is not likely to be able to return home at a future date.

(g) The public guardian shall, at such intervals as the court may direct, submit to the court an affidavit setting forth in detail the services he has provided for the benefit of the ward.

(h) Upon the death of the ward, the public guardian shall turn over to the court-appointed administrator all of the ward's assets and an account of his receipt and administration of the ward's property. A guardian ad litem shall be appointed for an accounting when the estate exceeds the amount set in Section 25-1 of this Act for administration of small estates.

(i)(1) On petition of any person who appears to have an interest in the estate, the court by temporary order may restrain the public guardian from performing specified acts of administration, disbursement or distribution, or from exercise of any powers or discharge of any duties of his office, or make any other order to secure proper performance of his duty, if it appears to the court that the public guardian might otherwise take some action contrary to the best interests of the ward. Persons with whom the public guardian may transact business may be made parties.

(2) The matter shall be set for hearing within 10 days unless the parties otherwise agree or unless for good cause shown the court determines that additional time is required. Notice as the court directs shall be given to the public guardian and his attorney of record, if any, and to any other parties named defendant in the petition.

(j) On petition of the public guardian, the court in its discretion may for good cause shown transfer guardianship to the State guardian.

(k) No later than January 31 of each year, the public guardian shall file an annual report with the clerk of the Circuit Court, indicating, with respect to the period covered by the report, the number of cases which he has handled, the date on which each case was assigned, the date of termination of each case which has been closed during the period, the disposition of each terminated case, and the total amount of fees collected during the period from each ward.

(l) (Blank).

(Source: P.A. 96-752, eff. 1-1-10; 97-1094, eff. 8-24-12.)