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91_HB1767eng HB1767 Engrossed LRB9103495WHmb 1 AN ACT to amend the Probate Act of 1975 by changing 2 Section 11a-18. 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 Section 11a-18 as follows: 7 (755 ILCS 5/11a-18) (from Ch. 110 1/2, par. 11a-18) 8 Sec. 11a-18. Duties of the estate guardian. 9 (a) To the extent specified in the order establishing 10 the guardianship, the guardian of the estate shall have the 11 care, management and investment of the estate, shall manage 12 the estate frugally and shall apply the income and principal 13 of the estate so far as necessary for the comfort and 14 suitable support and education of the ward, his minor and 15 adult dependent children, and persons related by blood or 16 marriage who are dependent upon or entitled to support from 17 him, or for any other purpose which the court deems to be for 18 the best interests of the ward, and the court may approve the 19 making on behalf of the ward of such agreements as the court 20 determines to be for the ward's best interests. The guardian 21 may make disbursement of his ward's funds and estate directly 22 to the ward or other distributee or in such other manner and 23 in such amounts as the court directs. If the estate of a 24 ward is derived in whole or in part from payments of 25 compensation, adjusted compensation, pension, insurance or 26 other similar benefits made directly to the estate by the 27 Veterans Administration, notice of the application for leave 28 to invest or expend the ward's funds or estate, together with 29 a copy of the petition and proposed order, shall be given to 30 the Veterans' Administration Regional Office in this State at 31 least 7 days before the hearing on the application. HB1767 Engrossed -2- LRB9103495WHmb 1 (a-5) The probate court, upon petition of a guardian, 2 other than the guardian of a minor, and after notice to all 3 other persons interested as the court directs, may authorize 4 the guardian to exercise any or all powers over the estate 5 and business affairs of the ward that the ward could exercise 6 if present and not under disability. The court may authorize 7 the taking of an action or the application of funds not 8 required for the ward's current and future maintenance and 9 support in any manner approved by the court as being in 10 keeping with the ward's wishes so far as they can be 11 ascertained. The court must consider the permanence of the 12 ward's disabling condition and the natural objects of the 13 ward's bounty. In ascertaining and carrying out the ward's 14 wishes the court may consider, but shall not be limited to, 15 minimization of State or federal income, estate, or 16 inheritance taxes; and providing gifts to charities, 17 relatives, and friends that would be likely recipients of 18 donations from the ward. The ward's wishes as best they can 19 be ascertained shall be carried out, whether or not tax 20 savings are involved. Actions or applications of funds may 21 include, but shall not be limited to, the following: 22 (1) making gifts of income or principal, or both, 23 of the estate, either outright or in trust; 24 (2) conveying, releasing, or disclaiming his or her 25 contingent and expectant interests in property, including 26 marital property rights and any right of survivorship 27 incident to joint tenancy or tenancy by the entirety; 28 (3) releasing or disclaiming his or her powers as 29 trustee, personal representative, custodian for minors, 30 or guardian; 31 (4) exercising, releasing, or disclaiming his or 32 her powers as donee of a power of appointment; 33 (5) entering into contracts; 34 (6) creating for the benefit of the ward or others, HB1767 Engrossed -3- LRB9103495WHmb 1 revocable or irrevocable trusts of his or her property 2 that may extend beyond his or her disability or life. 3 (7) exercising options of the ward to purchase or 4 exchange securities or other property; 5 (8) exercising the rights of the ward to elect 6 benefit or payment options, to terminate, to change 7 beneficiaries or ownership, to assign rights, to borrow, 8 or to receive cash value in return for a surrender of 9 rights under any one or more of the following: 10 (i) Life insurance policies, plans, or 11 benefits. 12 (ii) Annuity policies, plans, or benefits. 13 (iii) Mutual fund and other dividend 14 investment plans. 15 (iv) Retirement, profit sharing, and employee 16 welfare plans and benefits; 17 (9) exercising his or her right to claim or 18 disclaim an elective share in the estate of his or her 19 deceased spouse and to renounce any interest by testate 20 or intestate succession or by inter vivos transfer; 21 (10) changing the ward's residence or domicile; or 22 (11) modifying by means of codicil or trust 23 amendment the terms of the ward's will or any revocable 24 trust created by the ward, as the court may consider 25 advisable in light of changes in applicable tax laws. 26 The guardian in his or her petition shall briefly outline 27 the action or application of funds for which he or she seeks 28 approval, the results expected to be accomplished thereby, 29 and the tax savings, if any, expected to accrue. The 30 proposed action or application of funds may include gifts of 31 the ward's personal property or real estate, but transfers of 32 real estate shall be subject to the requirements of Article 33 XXSection 20of this Act. Gifts may be for the benefit of 34 prospective legatees, devisees, or heirs apparent of the ward HB1767 Engrossed -4- LRB9103495WHmb 1 or may be made to individuals or charities in which the ward 2 is believed to have an interest. The guardian shall also 3 indicate in the petition that any planned disposition is 4 consistent with the intentions of the ward insofar as they 5 can be ascertained, and if the ward's intentions cannot be 6 ascertained, the ward will be presumed to favor reduction in 7 the incidents of various forms of taxation and the partial 8 distribution of his or her estate as provided in this 9 subsection. The guardian shall not, however, be required to 10 include as a beneficiary or fiduciary any person who he has 11 reason to believe would be excluded by the ward. A guardian 12 shall be required to investigate and pursue a ward's 13 eligibility for governmental benefits. 14 Notwithstanding the powers granted in this subsection 15 (a-5), the guardian of the estate shall have no duty to (i) 16 investigate or evaluate the estate and business affairs of 17 the ward for purposes of taking or proposing any action 18 authorized by this Section or (ii) petition the court for 19 authority to exercise the powers granted in this Section. 20 (b) Upon the direction of the court which issued his 21 letters, a guardian may perform the contracts of his ward 22 which were legally subsisting at the time of the commencement 23 of the ward's disability. The court may authorize the 24 guardian to execute and deliver any bill of sale, deed or 25 other instrument. 26 (c) The guardian of the estate of a ward shall appear 27 for and represent the ward in all legal proceedings unless 28 another person is appointed for that purpose as guardian or 29 next friend. This does not impair the power of any court to 30 appoint a guardian ad litem or next friend to defend the 31 interests of the ward in that court, or to appoint or allow 32 any person as the next friend of a ward to commence, 33 prosecute or defend any proceeding in his behalf. Without 34 impairing the power of the court in any respect, if the HB1767 Engrossed -5- LRB9103495WHmb 1 guardian of the estate of a ward and another person as next 2 friend shall appear for and represent the ward in a legal 3 proceeding in which the compensation of the attorney or 4 attorneys representing the guardian and next friend is solely 5 determined under a contingent fee arrangement, the guardian 6 of the estate of the ward shall not participate in or have 7 any duty to review the prosecution of the action, to 8 participate in or review the appropriateness of any 9 settlement of the action, or to participate in or review any 10 determination of the appropriateness of any fees awarded to 11 the attorney or attorneys employed in the prosecution of the 12 action. 13 (d) Adjudication of disability shall not revoke or 14 otherwise terminate a trust which is revocable by the ward. 15 A guardian of the estate shall have no authority to revoke a 16 trust that is revocable by the ward, except that the court 17 may authorize a guardian to revoke a Totten trust or similar 18 deposit or withdrawable capital account in trust to the 19 extent necessary to provide funds for the purposes specified 20 in paragraph (a) of this Section. If the trustee of any 21 trust for the benefit of the ward has discretionary power to 22 apply income or principal for the ward's benefit, the trustee 23 shall not be required to distribute any of the income or 24 principal to the guardian of the ward's estate, but the 25 guardian may bring an action on behalf of the ward to compel 26 the trustee to exercise the trustee's discretion or to seek 27 relief from an abuse of discretion. This paragraph shall not 28 limit the right of a guardian of the estate to receive 29 accountings from the trustee on behalf of the ward. 30 (e) Absent court order pursuant to the "Illinois Power 31 of Attorney Act" enacted by the 85th General Assembly 32 directing a guardian to exercise powers of the principal 33 under an agency that survives disability, the guardian will 34 have no power, duty or liability with respect to any property HB1767 Engrossed -6- LRB9103495WHmb 1 subject to the agency. This subsection (e) applies to all 2 agencies, whenever and wherever executed. 3 (f) Upon petition by any interested person (including 4 the standby or short-term guardian), with such notice to 5 interested persons as the court directs and a finding by the 6 court that it is in the best interest of the disabled person, 7 the court may terminate or limit the authority of a standby 8 or short-term guardian or may enter such other orders as the 9 court deems necessary to provide for the best interest of the 10 disabled person. The petition for termination or limitation 11 of the authority of a standby or short-term guardian may, but 12 need not, be combined with a petition to have another 13 guardian appointed for the disabled person. 14 (Source: P.A. 89-672, eff. 8-14-96; 90-345, eff. 8-8-97; 15 90-796, eff. 12-15-98.)