Bill Text: IL HB4963 | 2023-2024 | 103rd General Assembly | Introduced

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Bill Title: Amends the Guardians for Adults with Disabilities Article of the Probate Act of 1975. Provides that the required report that is attached to a petition for adjudication of disability and for appointment of a guardian may contain a psychological evaluation that assesses the cognitive, emotional, and functional capacities of the respondent and that has been performed by a licensed clinical psychologist under the Clinical Psychologist Licensing Act within 3 months of the date of the filing of the petition or within one year of the date of the filing of the petition in the case of an individual with an intellectual disability. Provides that the court may enter an order authorizing the ward to execute a will or codicil upon the request of the ward that is accompanied by a report that states the ward possesses testamentary capacity from a current physician or a licensed clinical psychologist. Effective immediately.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2024-04-05 - Rule 19(a) / Re-referred to Rules Committee [HB4963 Detail]

Download: Illinois-2023-HB4963-Introduced.html

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103RD GENERAL ASSEMBLY State of Illinois 2023 and 2024 HB4963 Introduced 2/7/2024, by Rep. Maurice A. West, II SYNOPSIS AS INTRODUCED:
755 ILCS 5/11a-9 from Ch. 110 1/2, par. 11a-9
755 ILCS 5/11a-18 from Ch. 110 1/2, par. 11a-18
Amends the Guardians for Adults with Disabilities Article of the Probate Act of 1975. Provides that the required report that is attached to a petition for adjudication of disability and for appointment of a guardian may contain a psychological evaluation that assesses the cognitive, emotional, and functional capacities of the respondent and that has been performed by a licensed clinical psychologist under the Clinical Psychologist Licensing Act within 3 months of the date of the filing of the petition or within one year of the date of the filing of the petition in the case of an individual with an intellectual disability. Provides that the court may enter an order authorizing the ward to execute a will or codicil upon the request of the ward that is accompanied by a report that states the ward possesses testamentary capacity from a current physician or a licensed clinical psychologist. Effective immediately.
LRB103 38156 JRC 68289 b
A BILL FOR
HB4963 LRB103 38156 JRC 68289 b
AN ACT concerning civil law.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Probate Act of 1975 is amended by changing
Sections 11a-9 and 11a-18 as follows:
(755 ILCS 5/11a-9) (from Ch. 110 1/2, par. 11a-9)
Sec. 11a-9. Report.
(a) The petition for adjudication of disability and for
appointment of a guardian should be accompanied by a report
which contains (1) a description of the nature and type of the
respondent's disability and an assessment of how the
disability impacts on the ability of the respondent to make
decisions or to function independently; (2) an analysis and
results of evaluations of the respondent's mental and physical
condition and, where appropriate, educational condition,
adaptive behavior and social skills, which have been performed
within 3 months of the date of the filing of the petition, or,
in the case of an intellectual disability, a psychological
evaluation of the respondent that has been performed by a
clinical psychologist licensed under the Clinical Psychologist
Licensing Act, within one year of the date of the filing of the
petition, or a psychological evaluation that assesses the
cognitive, emotional, and functional capacities of the

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respondent and that has been performed by a licensed clinical
psychologist under the Clinical Psychologist Licensing Act
within 3 months of the date of the filing of the petition or
within one year of the date of the filing of the petition in
the case of an individual with an intellectual disability; (3)
an opinion as to whether guardianship is needed, the type and
scope of the guardianship needed, and the reasons therefor;
(4) a recommendation as to the most suitable living
arrangement and, where appropriate, treatment or habilitation
plan for the respondent and the reasons therefor; (5) the
name, business address, business telephone number, and
signatures of all persons who performed the evaluations upon
which the report is based, one of whom shall be a licensed
physician or a licensed clinical psychologist under the
Clinical Psychologist Licensing Act, or may, in the case of an
intellectual disability, be a clinical psychologist licensed
under the Clinical Psychologist Licensing Act, and a statement
of the certification, license, or other credentials that
qualify the evaluators who prepared the report.
(b) If for any reason no report accompanies the petition,
the court shall order appropriate evaluations to be performed
by a qualified person or persons and a report prepared and
filed with the court at least 10 days prior to the hearing.
(b-5) Upon oral or written motion by the respondent or the
guardian ad litem or upon the court's own motion, the court
shall appoint one or more independent experts to examine the

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respondent. Upon the filing with the court of a verified
statement of services rendered by the expert or experts, the
court shall determine a reasonable fee for the services
performed. If the respondent is unable to pay the fee, the
court may enter an order upon the petitioner to pay the entire
fee or such amount as the respondent is unable to pay. However,
in cases where the Office of State Guardian is the petitioner,
consistent with Section 30 of the Guardianship and Advocacy
Act, no expert services fees shall be assessed against the
Office of the State Guardian.
(c) Unless the court otherwise directs, any report
prepared pursuant to this Section shall not be made part of the
public record of the proceedings but shall be available to the
court or an appellate court in which the proceedings are
subject to review, to the respondent, the petitioner, the
guardian, and their attorneys, to the respondent's guardian ad
litem, and to such other persons as the court may direct.
Accessibility to a report prepared pursuant to this
Section shall be in accordance with Section 5 of the Court
Record and Document Accessibility Act.
(Source: P.A. 102-109, eff. 1-1-22; 103-166, eff. 1-1-24.)
(755 ILCS 5/11a-18) (from Ch. 110 1/2, par. 11a-18)
Sec. 11a-18. Duties of the estate guardian.
(a) To the extent specified in the order establishing the
guardianship, the guardian of the estate shall have the care,

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management and investment of the estate, shall manage the
estate frugally and shall apply the income and principal of
the estate so far as necessary for the comfort and suitable
support and education of the ward, his minor and adult
dependent children, and persons related by blood or marriage
who are dependent upon or entitled to support from him, or for
any other purpose which the court deems to be for the best
interests of the ward, and the court may approve the making on
behalf of the ward of such agreements as the court determines
to be for the ward's best interests. The guardian may make
disbursement of his ward's funds and estate directly to the
ward or other distributee or in such other manner and in such
amounts as the court directs. If the estate of a ward is
derived in whole or in part from payments of compensation,
adjusted compensation, pension, insurance or other similar
benefits made directly to the estate by the Veterans
Administration, notice of the application for leave to invest
or expend the ward's funds or estate, together with a copy of
the petition and proposed order, shall be given to the
Veterans' Administration Regional Office in this State at
least 7 days before the hearing on the application.
(a-5) The probate court, upon petition of a guardian,
other than the guardian of a minor, and after notice to all
other persons interested as the court directs, may authorize
the guardian to exercise any or all powers over the estate and
business affairs of the ward that the ward could exercise if

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present and not under disability. The court may authorize the
taking of an action or the application of funds not required
for the ward's current and future maintenance and support in
any manner approved by the court as being in keeping with the
ward's wishes so far as they can be ascertained. The court must
consider the permanence of the ward's disabling condition and
the natural objects of the ward's bounty. In ascertaining and
carrying out the ward's wishes the court may consider, but
shall not be limited to, minimization of State or federal
income, estate, or inheritance taxes; and providing gifts to
charities, relatives, and friends that would be likely
recipients of donations from the ward. The ward's wishes as
best they can be ascertained shall be carried out, whether or
not tax savings are involved. Actions or applications of funds
may include, but shall not be limited to, the following:
(1) making gifts of income or principal, or both, of
the estate, either outright or in trust;
(2) conveying, releasing, or disclaiming his or her
contingent and expectant interests in property, including
marital property rights and any right of survivorship
incident to joint tenancy or tenancy by the entirety;
(3) releasing or disclaiming his or her powers as
trustee, personal representative, custodian for minors, or
guardian;
(4) exercising, releasing, or disclaiming his or her
powers as donee of a power of appointment;

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(5) entering into contracts;
(6) creating for the benefit of the ward or others,
revocable or irrevocable trusts of his or her property
that may extend beyond his or her disability or life;
(7) exercising options of the ward to purchase or
exchange securities or other property;
(8) exercising the rights of the ward to elect benefit
or payment options, to terminate, to change beneficiaries
or ownership, to assign rights, to borrow, or to receive
cash value in return for a surrender of rights under any
one or more of the following:
(i) life insurance policies, plans, or benefits,
(ii) annuity policies, plans, or benefits,
(iii) mutual fund and other dividend investment
plans,
(iv) retirement, profit sharing, and employee
welfare plans and benefits;
(9) exercising his or her right to claim or disclaim
an elective share in the estate of his or her deceased
spouse and to renounce any interest by testate or
intestate succession or by inter vivos transfer;
(10) changing the ward's residence or domicile; or
(11) modifying by means of codicil or trust amendment
the terms of the ward's will or any revocable trust
created by the ward, as the court may consider advisable
in light of changes in applicable tax laws.

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The guardian in his or her petition shall briefly outline
the action or application of funds for which he or she seeks
approval, the results expected to be accomplished thereby, and
the tax savings, if any, expected to accrue. The proposed
action or application of funds may include gifts of the ward's
personal property or real estate, but transfers of real estate
shall be subject to the requirements of Section 20 of this Act.
Gifts may be for the benefit of prospective legatees,
devisees, or heirs apparent of the ward or may be made to
individuals or charities in which the ward is believed to have
an interest. The guardian shall also indicate in the petition
that any planned disposition is consistent with the intentions
of the ward insofar as they can be ascertained, and if the
ward's intentions cannot be ascertained, the ward will be
presumed to favor reduction in the incidents of various forms
of taxation and the partial distribution of his or her estate
as provided in this subsection. The guardian shall not,
however, be required to include as a beneficiary or fiduciary
any person who he has reason to believe would be excluded by
the ward. A guardian shall be required to investigate and
pursue a ward's eligibility for governmental benefits.
(a-6) The guardian may, without an order of court, open,
maintain, and transfer funds to an ABLE account on behalf of
the ward and the ward's minor and adult dependent children as
specified under Section 16.6 of the State Treasurer Act.
(b) Upon the direction of the court which issued his

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letters, a guardian may perform the contracts of his ward
which were legally subsisting at the time of the commencement
of the ward's disability. The court may authorize the guardian
to execute and deliver any bill of sale, deed or other
instrument.
(c) The guardian of the estate of a ward shall appear for
and represent the ward in all legal proceedings unless another
person is appointed for that purpose as guardian or next
friend. This does not impair the power of any court to appoint
a guardian ad litem or next friend to defend the interests of
the ward in that court, or to appoint or allow any person as
the next friend of a ward to commence, prosecute or defend any
proceeding in his behalf. Without impairing the power of the
court in any respect, if the guardian of the estate of a ward
and another person as next friend shall appear for and
represent the ward in a legal proceeding in which the
compensation of the attorney or attorneys representing the
guardian and next friend is solely determined under a
contingent fee arrangement, the guardian of the estate of the
ward shall not participate in or have any duty to review the
prosecution of the action, to participate in or review the
appropriateness of any settlement of the action, or to
participate in or review any determination of the
appropriateness of any fees awarded to the attorney or
attorneys employed in the prosecution of the action.
(d) Adjudication of disability shall not revoke or

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otherwise terminate a trust which is revocable by the ward. A
guardian of the estate shall have no authority to revoke a
trust that is revocable by the ward, except that the court may
authorize a guardian to revoke a Totten trust or similar
deposit or withdrawable capital account in trust to the extent
necessary to provide funds for the purposes specified in
paragraph (a) of this Section. If the trustee of any trust for
the benefit of the ward has discretionary power to apply
income or principal for the ward's benefit, the trustee shall
not be required to distribute any of the income or principal to
the guardian of the ward's estate, but the guardian may bring
an action on behalf of the ward to compel the trustee to
exercise the trustee's discretion or to seek relief from an
abuse of discretion. This paragraph shall not limit the right
of a guardian of the estate to receive accountings from the
trustee on behalf of the ward.
(d-5) Upon a verified petition by the plenary or limited
guardian of the estate or the request of the ward that is
accompanied by a current physician's or a licensed clinical
psychologist's report that states the ward possesses
testamentary capacity, the court may enter an order
authorizing the ward to execute a will or codicil. In so
ordering, the court shall authorize the guardian to retain
independent counsel for the ward with whom the ward may
execute or modify a will or codicil.
(e) Absent court order pursuant to the Illinois Power of

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Attorney Act directing a guardian to exercise powers of the
principal under an agency that survives disability, the
guardian will have no power, duty or liability with respect to
any property subject to the agency. This subsection (e)
applies to all agencies, whenever and wherever executed.
(f) Upon petition by any interested person (including the
standby or short-term guardian), with such notice to
interested persons as the court directs and a finding by the
court that it is in the best interests of the person with a
disability, the court may terminate or limit the authority of
a standby or short-term guardian or may enter such other
orders as the court deems necessary to provide for the best
interests of the person with a disability. The petition for
termination or limitation of the authority of a standby or
short-term guardian may, but need not, be combined with a
petition to have another guardian appointed for the person
with a disability.
(Source: P.A. 101-329, eff. 8-9-19; 102-72, eff. 1-1-22.)