SB2894sam003 97TH GENERAL ASSEMBLY

Sen. Ira I. Silverstein

Filed: 4/23/2012

09700SB2894sam003 LRB097 17188 JLS 68694 a

AMENDMENT TO SENATE BILL 2894

AMENDMENT NO. ______. Amend Senate Bill 2894 by replacing everything after the enacting clause with the following:

"Section 5. The Guardianship and Advocacy Act is amended by changing Section 31 as follows:

(20 ILCS 3955/31) (from Ch. 91 1/2, par. 731)

Sec. 31. Availability of guardian; appointment of State Guardian. The State Guardian shall not be appointed if another suitable person is available and willing to accept the guardianship appointment. In all cases where a court appoints the State Guardian, the court shall indicate in the order appointing the guardian as a finding of fact that no other suitable and willing person could be found to accept the guardianship appointment. On and after the effective date of this amendatory Act of the 97th General Assembly, the court shall also indicate in the order, as a finding of fact, the reasons that the State Guardian appointment, rather than the appointment of another interested party, is required. This requirement shall be waived where the Office of State Guardian petitions for its own appointment as guardian.

(Source: P.A. 89-396, eff. 8-20-95.)

Section 10. The Clerks of Courts Act is amended by adding Section 27.3f as follows:

(705 ILCS 105/27.3f new)

Sec. 27.3f. Guardianship and advocacy operations fee.

(a) As used in this Section, "guardianship and advocacy" means the guardianship and advocacy services provided by the Guardianship and Advocacy Commission and defined in the Guardianship and Advocacy Act. Viable public guardianship and advocacy programs, including the public guardianship programs created and supervised in probate proceedings in the Illinois courts, are essential to the administration of justice and ensure that incapacitated persons and their estates are protected. To defray the expense of maintaining and operating the divisions and programs of the Guardianship and Advocacy Commission and to support viable guardianship and advocacy programs throughout Illinois, each circuit court in a county with a population of 1,000,000 or more, or a county with a population greater than 650,000 but less than 1,000,000 that has, though duly authorized action, chosen not to accept appointment of the Office of State Guardian as the Public Guardian under Section 13-1.3 of the Probate Act of 1975, shall charge and collect a fee on all matters filed in probate cases in accordance with this Section, but no fees shall be assessed against the State Guardian, any State agency under the jurisdiction of the Governor, any public guardian, or any State's Attorney.

(b) No fees specified in this Section shall be imposed in any minor guardianship established under Article XI of the Probate Act of 1975 or against an indigent person. As used in this Section, "indigent person" includes any person who meets one or more of the following criteria:

(1) He or she is receiving assistance under one or more of the following public benefits programs: Supplemental Security Income (SSI), Aid to the Aged, Blind and Disabled (AABD), Temporary Assistance for Needy Families (TANF), Supplemental Nutrition Assistance Program (SNAP), General Assistance, State Transitional Assistance, or State Children and Family Assistance.

(2) His or her available income is 125% or less of the current poverty level as established by the United States Department of Health and Human Services, unless the applicant's assets that are not exempt under Part 9 or 10 of Article XII of the Code of Civil Procedure are of nature and value that the court determines that the applicant is able to pay the fees, costs, and charges.

(3) He or she is, in the discretion of the court, unable to proceed in an action without payment of fees, costs, and charges and his or her payment of those fees, costs, and charges would result in substantial hardship to the person or his or her family.

(4) He or she is an indigent person pursuant to Section 5-105.5 of the Code of Civil Procedure providing that an "indigent person" means a person whose income is 125% or less of the current official federal poverty guidelines or who is otherwise eligible to receive civil legal services under the Legal Services Corporation Act of 1974.

(c) The clerk is entitled to receive the fees specified in this Section, which shall be paid in advance, and managed by the clerk as set out in paragraph (4), except that, for good cause shown, the court may suspend, reduce, or release the costs payable under this Section:

(1) For administration of the estate of a decedent (whether testate or intestate) or of a missing person, a fee of $50, plus the fees specified in paragraph (3), except:

(A) When the value of the real and personal property of a decedent (whether testate or intestate) does not exceed $15,000, no fee shall be assessed.

(B) When (i) proof of heirship alone is made, (ii) a domestic or foreign will is admitted to probate without administration (including proof of heirship), or (iii) letters of office are issued for a particular purpose without administration of the estate, the fee shall be $40.

(2) For administration of the estate of a ward that results in the appointment of the Office of State Guardian, the fee shall be $250 plus the fees specified in paragraph (3).

(3) In addition to the fees payable under paragraph (1) or (2) of this subsection, the following fees are payable:

(A) For each account (other than one final account) filed in the estate of a decedent or ward, the fee shall be $25.

(B) For filing a claim in an estate when the amount claimed is $150 or more but less than $500, the fee shall be $100; when the amount claimed is $500 or more but less than $10,000, the fee shall be $115; when the amount claimed is $10,000 or more, the fee shall be $135; provided that the court in allowing a claim may add to the amount allowed the filing fee paid by the claimant.

(C) For filing in an estate a claim, petition, or supplemental proceeding based upon an action seeking equitable relief including the construction or contest of a will, enforcement of a contract to make a will, and proceedings involving a testamentary trust or the appointment of a testamentary trustee, the fee shall be $60.

(D) For filing in an estate (i) the appearance of any person for the purpose of consent or (ii) the appearance of an executor, administrator, administrator to collect, guardian, guardian ad litem, or special administrator, no fee.

(E) Except as provided in subparagraph (D) of this paragraph (3), for filing the appearance of any person or persons, the fee shall be $30.

(F) For each jury demand, the fee shall be $180.

(G) For disposition of the collection of a judgment or settlement of an action or claim for wrongful death of a decedent or of any cause of action of a ward, when there is no other administration of the estate, the fee shall be $50, less any amount paid under subparagraph (B) of paragraph (1) or subparagraph (B) of paragraph (3) except that if the amount involved does not exceed $5,000, the fee, including any amount paid under subparagraph (B) of paragraph (1) or subparagraph (B) of paragraph (3), shall be $20.

(4) The guardianship and advocacy operations fees set forth in this Section shall be in addition to all other fees and charges and assessable as costs and shall not be subject to disbursement under Section 27.5 or 27.6 of this Act. Twenty percent of the fee shall be retained by the clerk to defray costs of collection and 80% of the fee shall be disbursed within 60 days after receipt by the circuit clerk to the State Treasurer for deposit by the State Treasurer into the Guardianship and Advocacy Fund.

Section 15. The Probate Act of 1975 is amended by changing Sections 11a-3, 11a-12, 11a-20, 13-1, and 13-5 and by adding Section 13-1.3 as follows:

(755 ILCS 5/11a-3) (from Ch. 110 1/2, par. 11a-3)

Sec. 11a-3. Adjudication of disability; Power to appoint guardian.

(a) Upon the filing of a petition by a reputable person or by the alleged disabled person himself or on its own motion, the court may adjudge a person to be a disabled person, but only if it has been demonstrated by clear and convincing evidence that the person is a disabled person as defined in Section 11a-2. If the court adjudges a person to be a disabled person, the court may appoint (1) a guardian of his person, if it has been demonstrated by clear and convincing evidence that because of his disability he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the care of his person, or (2) a guardian of his estate, if it has been demonstrated by clear and convincing evidence that because of his disability he is unable to manage his estate or financial affairs, or (3) a guardian of his person and of his estate.

(b) Guardianship shall be utilized only as is necessary to promote the well-being of the disabled person, to protect him from neglect, exploitation, or abuse, and to encourage development of his maximum self-reliance and independence. Guardianship shall be implemented in the least restrictive alternative, shall maximize the alleged disabled person's right to self-determination and autonomy, and shall be ordered only to the extent necessitated by the individual's actual mental, physical and adaptive 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.

(Source: P.A. 93-435, eff. 1-1-04.)

(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.

(b) If the respondent is adjudged to be disabled and to lack some, but not all, of the be totally without capacity as specified in Section 11a-3, and if the court finds that limited guardianship is necessary for the protection of will not provide sufficient protection for the disabled person, his or her estate, or both, the court shall appoint a limited plenary 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.

(c) If the respondent is adjudged to be disabled and to be totally without lack some but not all of the capacity as specified in Section 11a-3, and if the court finds that limited guardianship will not provide sufficient is necessary for the protection for of the disabled person, his or her estate, or both, the court shall appoint a plenary limited guardian for of 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.

(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. 89-396, eff. 8-20-95.)

(755 ILCS 5/11a-20) (from Ch. 110 1/2, par. 11a-20)

Sec. 11a-20. Termination of adjudication of disability - Revocation of letters - modification.)

(a) Except as provided in subsection (c), upon Upon the filing of a petition by or on behalf of a disabled person or on its own motion, the court may terminate the adjudication of disability of the ward, revoke the letters of guardianship of the estate or person, or both, or modify the duties of the guardian if the ward's capacity to perform the tasks necessary for the care of his person or the management of his estate has been demonstrated by clear and convincing evidence. A report or testimony by a licensed physician is not a prerequisite for termination, revocation or modification of a guardianship order under this subsection.

(b) Except as provided in subsection (b-5), a A request by the ward or any other person on the ward's behalf, under this Section may be communicated to the court or judge by any means, including but not limited to informal letter, telephone call or visit. Upon receipt of a request from the ward or another person, the court may appoint a guardian ad litem to investigate and report to the court concerning the allegations made in conjunction with said request, and if the ward wishes to terminate, revoke, or modify the guardianship order, to prepare the ward's petition and to render such other services as the court directs.

(b-5) Upon the filing of a verified petition by the guardian of the disabled person or the disabled person, the court may terminate the adjudication of disability of the ward, revoke the letters of guardianship of the estate or person, or both, or modify the duties of the guardian if: (1) a report completed in accordance with subsection (a) of Section 11a-9 states that the disabled person is no longer in need of guardianship or that the type and scope of guardianship should be modified; (2) the disabled person no longer wishes to be under guardianship or desires that the type and scope of guardianship be modified; and (3) the guardian of the disabled person states that it is in the best interest of the disabled person to terminate the adjudication of disability of the ward, revoke the letters of guardianship of the estate or person, or both, or modify the duties of the guardian and provides the basis thereof. In a petition brought pursuant to this subsection, the court may terminate the adjudication of disability of the ward, revoke the letters of guardianship of the estate or person, or both, or modify the duties of the guardian, unless it has been demonstrated by clear and convincing evidence that the ward is incapable of performing the tasks necessary for the care of his person or the management of his estate.

(c) Notice of the hearing on a petition under this Section, together with a copy of the petition, shall be given to the ward, unless he is the petitioner, and to each and every guardian to whom letters of guardianship have been issued and not revoked, not less than 14 days before the hearing.

(Source: P.A. 86-605.)

(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.

(a) In counties having a population of 1,000,000 or less, the Governor may appoint the Office of State Guardian the Public Guardian in any county in which there is no currently serving public guardian or in which the public guardian's term of office has expired. The State Guardian appointed as public guardian shall serve continuously and not be subject to 4-year terms of appointment. In cases in which the State Guardian serves as public guardian, the State Guardian shall assume only the duties described in Sections 30 and 32 of the Guardianship and Advocacy Act, the monitoring provisions under subsection (a) of Section 13-5 of this Act, and shall be otherwise subject to the provisions of the Guardianship and Advocacy Act and not this Article XIII.

(b) In the case where the Governor determines he or she will exercise the discretion to appoint in this Section, 60 days notice shall be given to the chief executive officer of the county and the presiding judge of the circuit court in which the county is located. If, within 30 days after the giving of such notice, the presiding judge or county through duly authorized action advises that it will not accept such appointment, then thereafter the Office of State Guardian will be unavailable for appointment in such county and for each case that the State Guardian retains, the county shall pay a percentage of costs of continued representation by the State Guardian in accordance with the fees schedule from time to time established through rulemaking and published by the Joint Committee on Administrative Rules for a county or counties of similar population.

(c) Any organizational entity petitioning for guardianship of a ward that results in appointment of Office of State Guardian shall pay a fee of $500 in addition to all other fees owing by statute or rule if that entity is located in a county that does not pay probate fees enumerated in Section 27.3f of the Clerk of Courts Act.

(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 $25,000 in counties having a population of 1,000,000 or greater, or $100,000 in counties with a population of 650,000 or greater but less than 1,000,000; and $75,000 in counties having a population of 650,000 or less. When a disabled adult who has a smaller estate is in need of guardianship services, 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 $25,000, in counties having a population of 1,000,000 or more, or less than $100,000, in counties having a population of 650,000 or more but less than 1,000,000, the public guardian shall continue to serve as guardian for as long as the guardianship continues. In all other counties, 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. 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) (Blank) 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.)".