Recent Changes to Illinois Guardianship Law 2021

This article discusses recent changes to Illinois Guardianship Law, including the following topics:

• Adult Protective Services Act
• Testamentary Capacity for Persons with Disabilities

• Temporary Guardians
• Disposition of Remains Act
• “Persons with Disabilities”

Adult Protective Services Act

Public Act 99-0287:

This act amends Section 8 of the Adult Protective Services Act.

Section 8 of the Adult Protective Services Act is amended to provide that the Department of Aging shall release records (not to include 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[.]”  

Effective January 1, 2016.

Testamentary Capacity for Persons with Disabilities

Public Act 99-0302:

This act amends Sections 4-1 and 11a-18(d-5) of the Probate Act of 1975.  

Section 4-1 of the Probate Act of 1975 is amended through the establishment of a rebuttable presumption that a will or codicil executed following the adjudication of the testator as a person with a disability is void if (1) a plenary guardian of the estate has been appointed; or (2) the court found that the person with a disability lacks testamentary capacity and a limited guardian of the estate has been appointed.

However, through clear and convincing evidence regarding the presence of testamentary capacity of the person with a disability at the time that the will or codicil was executed, the presumption may be overcome.

If a person executes a will or codicil in accordance with the recently enacted Section 11a-18(d-5) of the Probate Act of 1975, the above presumption does not apply.

For wills and codicils executed after January 1, 2016, a court may authorize the execution of a will or codicil by a person under guardianship (1) upon presentation of a verified petition by the guardian of the estate and/or upon the request of the person under guardianship, (2) so long as the verified petition or request is accompanied by a report by a physician stating that the person under guardianship has testamentary capacity under Section 11a-18(d-5).

The court shall also authorize the guardian to retain independent counsel on behalf of the person under guardianship for the purposes of executing the will or codicil if the court authorizes the execution of a will or codicil. However, this law is only applicable to wills or codicils executed after January 1, 2016

Effective January 1, 2016.

Temporary Guardians 

Public Act 99-0070:

This act amends Section 11a-4 of the Probate Act of 1975.  

The limited powers and duties of a guardian of the person or estate shall be those specifically enumerated in the court order appointing the temporary guardian.

Effective January 1, 2016.

Disposition of Remains Act

Public Act 99-0417:

This act amends Section 40 of the Disposition of Remains Act.

A person’s written instructions as to the disposition of their remains may include directions relating to gender identity, including, without limitation, directions regarding appearance, gender pronouns, and chosen name. This applies regardless of whether the person has changed the gender identifier on any identification, undertaken any transition-related medical treatment, or obtained a name change by court order.  

Effective January 1, 2016.

“Persons with Disabilities”

Public Act 99-0143:

This act alters several sections in the Illinois Compiled Statutes.  

Former references to “disabled persons” have been updated to “persons with disabilities,” and all prior instances of language regarding “the mentally and developmentally disabled” are changed to “persons with mental and developmental disabilities.”

Additionally, the title of Section 11a of the Probate Act is “Guardians for Adults with Disabilities, changed from “Guardians for Disabled Adults.” In suit, the guardianship lexicon has changed in conformity, with examples including the use of the phrase “alleged person with a disability” in place of “alleged disabled person.”

Effective July 27, 2015.

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