Adult Guardianship Policy and Legislation

Legislative Updates.  The following are recently passed laws that are of interest to those representing persons with disabilities in Illinois.

Adult Protective Services Act

Public Act 99-0287, Effective January 1, 2016
Amends Section 8 of the Adult Protective Services Act to provide that the Department of Aging shall release records (excluding the identity of the reporter) concerning reports of abuse, neglect, financial exploitation, or self-neglect to: “(1.5) A representative of the public guardian acting in the course of investigating the appropriateness of guardianship for the eligible adult or while pursuing a petition for guardianship of the eligible adult pursuant to the Probate Act of 1975[.]” We thank OPG Attorney, Amy Kessler, for identifying the need for this amendment and going even further to draft the language to address it. This Act will enable OPG to be more effective in protecting persons who might have been abused, neglected and/or exploited.

To read the entire act, click here

Testamentary Capacity for Persons with Disabilities

Public Act 99-0302, Effective January 1, 2016
Amends Sections 4-1 and 11a-18(d-5) of the Probate Act of 1975. Section 4-1 is amended by establishing a rebuttable presumption that a will or codicil is void if it was executed after the testator is adjudicated a person with a disability. The presumption applies to persons under guardianship for whom: (1) a plenary guardian of the estate is appointed; or (2) a limited guardian of the estate is appointed and the court found that person to lack testamentary capacity. The presumption is overcome by clear and convincing evidence that the person with a disability had testamentary capacity at the time the will or codicil was executed. The presumption does not apply to a person with a disability who executes the will or codicil in accordance with (newly enacted) Section 11a-18(d-5) of the Probate Act of 1975. Under Section 11a-18(d-5), a court may authorize a person under guardianship to execute a will or codicil [1] upon a verified petition by the plenary or limited guardian of the estate or the request of the person under guardianship [2] that is accompanied by a current physician’s report that states the person under guardianship possesses testamentary capacity. If the court authorizes the execution of a will or codicil, it shall authorize the guardian to retain independent counsel for the person under guardianship with whom that person may execute the will or codicil. The law only applies to wills or codicils executed after its effective date of January 1, 2016.

To read the entire act, click here

Temporary Guardians

Public Act 99-0070, Effective January 1, 2016
Amends Section 11a-4 of the Probate Act of 1975. The law provides that a temporary guardian shall have the limited powers and duties of a guardian of the person or estate that are specifically enumerated in the court order appointing the temporary guardian.

To read the entire act, click here

Disposition of Remains Act

Public Act 99-0417, Effective January 1, 2016
Amends Section 40 of the Disposition of Remains Act by providing that a person’s written directions regarding the disposition of their remains may include instructions regarding gender identity, including, but not limited to, instructions with respect to appearance, chosen name, and gender pronouns, regardless of whether the person has obtained a court-ordered name change, changed the gender marker on any identification document, or undergone any transition-related medical treatment.

To read the entire act, click here

“Persons with Disabilities”

Public Act 99-0143, Effective July 27, 2015
This act changes various sections in the Illinois Compiled Statutes. P.A. 99-0143 changes all occurrences of “disabled persons” to “persons with disabilities” and all occurrences of “the mentally and developmentally disabled” to “persons with mental and developmental disabilities.” The title of Section 11a of the Probate Act is changed from “Guardians for Disabled Adults” to “Guardians for Adults with Disabilities.” There are also several changes to the guardianship lexicon, e.g., “alleged disabled person” becomes “alleged person with a disability,” and “disabled person” becomes “person with a disability.”

To read the entire act, click here