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There have been no significant changes to Illinois Probate Law for 2023. The changes in Probate law is meant to serve as an overview of the new laws for 2022 and is not meant to be an exhaustive review.
While there have been no significant changes to Probate Laws in Illinois, there were nearly 200 new laws for Illinois in 2022. This article will cover the changes in Probate law for 2022. It is important to review Probate changes. changes in Probate law is meant to serve as an overview of the new laws for 2022 and is not meant to be an exhaustive review.
Public Act 102-377 institutes a new statute of repose for estate planning attorneys. A statute of repose is similar to a statute of limitations. Under a statute of repose, certain legal claims will be barred if they are not brought within a specific time frame. Under the new law, if an individual wants to bring an estate planning malpractice claim against an attorney that practices in estate planning, there is now a six year time limit. If an action is not brought within the six year period, the claim against the attorney will not be able to proceed due to the statute of repose.
THE ELECTRONIC WILLS AND REMOTE WITNESSES ACT
Public Act 102-167 was passed in response to the Covid-19 pandemic and to bring the law into harmony with seismic shift that the pandemic has caused. This act allows for probate of electronic wills and wills that were witnessed over telecommunication means, such as Zoom for such purposes. The act also allows for documents other than wills to be executed and witnessed through Zoom and other telecommunication services. This act comports with drastic change in the legal landscape as the Covid-19 pandemic is entering its second year of impairing traditional face to face meetings and in person court sessions.
CHANGES TO THE ADULT GUARDIANSHIP STATUTE
Public Act 102-72 made changes to the Adult Guardianship Statute that now separate guardians may be appointed for both the person and the estate. There are important distinctions between being the guardian of the person and the estate.
- Duties of a Guardian of the Person
- The Probate Act of 1975, 755 ILCS 5/1-1 et. Seq. gives extensive powers to the guardian of the person.
- The guardian of the person has control over medical decisions for the ward, where the ward will live, and have custody of the ward.
- The guardian of the person must try comport with what the ward would do if the ward is deemed competent.
- The guardian of the person has the ability to make medical decisions on behalf of the ward.
- The medical decision powers range from routine healthcare, vaccinations, and ending life sustaining treatment.
- The guardian of the person has the power to authorize medical care even if the ward objects.
- The guardian of the person is also charged with making sure that the ward receives all needed professional services.
- Under the new law, a separate guardian of the estate may be appointed.
- The guardian of the estate of the ward has distinct duties from the guardian of the person. Below is a list of some of the duties of the guardian of the person. The list is meant to serve as an overview and is not exhaustive.
- The guardian of the estate of the ward has “…powers over the estate and business affairs of the ward that the ward could exercise if present and not under a disability.” 755 ILCS 5/11a-18(a-5).
- The guardian of the estate is charged with the care, management, and investment of the ward. 755 ILCS 5/11a-18(a).
- The guardian of the estate has a duty to use the income from the estate to provide the ward a comfortable lifestyle and education of the ward.
- It is recommended that as a best practice for the guardian of the estate to prepare an annual budget to present to the court that includes the following expenses;
- Medical care
- Cost of caregivers
- This list is not meant to be exhaustive.
- The new law permitting separate guardians for both the person and the estate recognizes the significant power the guardian has over the ward. By allowing separate guardians, it allows each guardian to focus on either the person or the estate.
CHANGES IN ADULT GUARDIANSHIP
House Bill 842 changes the language of the Adult Guardianship statute. The statute used to state that a court may enter an order against the petitioner for a guardian ad litem (GAL), and or appointed counsel to pay the fees on behalf of the respondent if the respondent or the respondent’s estate cannot pay the fees. The revised law now states that assigning the fees to the petitioner is now up to the discretion of the court. The law also prohibits these fees being the responsibility of Illinois state agencies like the Office of the State Guardian.
POWER OF ATTORNEY
House Bill 679 amends the Illinois Power of Attorney Act. 755 ILCS 45/1-1. The Illinois Power of Attorney Act is very much a living document that has been subject to several revisions due to the advances in medicine and more modern financial needs. A power of attorney is given by the principal to an agent (an individual) to make decisions regarding health care, property, and financial decisions on behalf of the principal. The latest change to the law states that a principal can elect a thirty- day delayed revocation of their health care agency to an agent. Once the principal chooses to elect a thirty-day delayed revocation, it is delayed for a period of thirty days after the principal informs their intent to revoke the healthcare agency.
Public Act 102-160 addresses the sweeping changes needed to adjust to the “new normal” of the global Covid-19 pandemic. As Illinois Governor J.B. Pritzker issued mandatory stay at home orders, face to face meetings became a health risk to exposure to Covid-19. As the pandemic swept through Illinois and the rest of the world, many businesses and the courts were able to reopen using an audiovisual service like Zoom. The Illinois legislature adapted Public Act 102-160 to adjust to the “new normal.” The Act permits electronic and remote notarization by notaries public. The adaption to the latest telecommunication technology eliminates the need for face-to-face meetings that were formally required, and also serves as a means to practice social distancing to reduce the spread of Covid-19.
The changes to Illinois Probate Laws in 2022 brought about some sweeping changes to adapt to the global Covid-19 pandemic by eliminating face-to-face meetings in some situations. If you have any questions about changes to the Illinois Probate Laws in 2023, please reach out to one of our experienced attorneys at (630) 324-6666.
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