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Sen. Ira I. Silverstein
Filed: 3/11/2013
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1 | | AMENDMENT TO SENATE BILL 1280
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2 | | AMENDMENT NO. ______. Amend Senate Bill 1280 by replacing |
3 | | everything after the enacting clause with the following:
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4 | | "Section 5. The Illinois Power of Attorney Act is amended |
5 | | by changing Sections 2-7 and 2-10 as follows:
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6 | | (755 ILCS 45/2-7) (from Ch. 110 1/2, par. 802-7)
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7 | | Sec. 2-7. Duty - standard of care - record-keeping - |
8 | | exoneration. |
9 | | (a) The agent shall be under
no duty to exercise the powers |
10 | | granted by the agency or to assume control
of or responsibility |
11 | | for any of the principal's property, care or affairs,
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12 | | regardless of the principal's physical or mental condition. |
13 | | Whenever a
power is exercised, the agent shall act in good |
14 | | faith for the benefit of
the principal using due care, |
15 | | competence, and diligence in accordance with the terms of the |
16 | | agency and shall be
liable for negligent exercise. An agent who |
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1 | | acts with due care for the
benefit of the principal shall not |
2 | | be liable or limited merely because the
agent also benefits |
3 | | from the act, has individual or conflicting interests
in |
4 | | relation to the property, care or affairs of the principal or |
5 | | acts in a
different manner with respect to the agency and the |
6 | | agent's individual
interests.
The agent shall not be
affected |
7 | | by any amendment or termination
of the agency until the agent |
8 | | has actual knowledge thereof. The agent
shall not be liable for |
9 | | any loss due to error of judgment nor for the act
or default of |
10 | | any other person.
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11 | | (b) An agent that has accepted appointment must act in |
12 | | accordance with the principal's expectations to the extent |
13 | | actually known to the agent and otherwise in the principal's |
14 | | best interests. |
15 | | (c) An agent shall keep a record of all receipts, |
16 | | disbursements, and significant actions taken under the |
17 | | authority of the agency and shall provide a copy of this record |
18 | | when requested to do so by: |
19 | | (1) the principal, a guardian, another fiduciary |
20 | | acting on behalf of the principal, and, after the death of |
21 | | the principal, the personal representative or successors |
22 | | in interest of the principal's estate; |
23 | | (2) a representative of a provider agency, as defined |
24 | | in Section 2 of the Elder Abuse and Neglect Act, acting in |
25 | | the course of an assessment of a complaint of elder abuse |
26 | | or neglect under that Act; |
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1 | | (3) a representative of the Office of the State Long |
2 | | Term Care Ombudsman, acting in the course of an |
3 | | investigation of a complaint of financial exploitation of a |
4 | | nursing home resident under Section 4.04 of the Illinois |
5 | | Act on the Aging; |
6 | | (4) a representative of the Office of Inspector General |
7 | | for the Department of Human Services, acting in the course |
8 | | of an assessment of a complaint of financial exploitation |
9 | | of an adult with disabilities pursuant to Section 35 of the |
10 | | Abuse of Adults with Disabilities Intervention Act; or |
11 | | (5) a court under Section 2-10 of this Act ; or . |
12 | | (6) a representative of the Office of State Guardian or |
13 | | public guardian for the county in which the principal |
14 | | resides acting in the course of investigating whether to |
15 | | file a petition for guardianship of the principal under |
16 | | Section 11a-4 or 11a-8 of the Probate Act of 1975. |
17 | | (d) If the agent fails to provide his or her record of all |
18 | | receipts, disbursements, and significant actions within 21 |
19 | | days after a request under subsection (c), the elder abuse |
20 | | provider agency , the State Guardian, the public guardian, or |
21 | | the State Long Term Care Ombudsman may petition the court for |
22 | | an order requiring the agent to produce his or her record of |
23 | | receipts, disbursements, and significant actions. If the court |
24 | | finds that the agent's failure to provide his or her record in |
25 | | a timely manner to the elder abuse provider agency , the State |
26 | | Guardian, the public guardian, or the State Long Term Care |
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1 | | Ombudsman was without good cause, the court may assess |
2 | | reasonable costs and attorney's fees against the agent, and |
3 | | order such other relief as is appropriate. |
4 | | (e) An agent is not required to disclose receipts, |
5 | | disbursements, or other significant actions conducted on |
6 | | behalf of the principal except as otherwise provided in the |
7 | | power of attorney or as required under subsection (c). |
8 | | (f) An agent that violates this Act is liable to the |
9 | | principal or the principal's successors in interest for the |
10 | | amount required (i) to restore the value of the principal's |
11 | | property to what it would have been had the violation not |
12 | | occurred, and (ii) to reimburse the principal or the |
13 | | principal's successors in interest for the attorney's fees and |
14 | | costs paid on the agent's behalf. This subsection does not |
15 | | limit any other applicable legal or equitable remedies. |
16 | | (Source: P.A. 96-1195, eff. 7-1-11 .)
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17 | | (755 ILCS 45/2-10) (from Ch. 110 1/2, par. 802-10)
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18 | | Sec. 2-10. Agency-court relationship. |
19 | | (a) Upon petition by any interested
person (including the |
20 | | agent), with such notice to interested persons as the
court |
21 | | directs and a finding by the court that the principal
lacks |
22 | | either the capacity to control or the capacity to revoke the |
23 | | agency, the court may construe a power of attorney, review the |
24 | | agent's conduct, and grant appropriate relief including |
25 | | compensatory damages. |
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1 | | (b) If the court finds
that the agent is not acting for the |
2 | | benefit of the principal in accordance
with the terms of the |
3 | | agency or that the agent's action or inaction has
caused or |
4 | | threatens substantial harm to the principal's person or |
5 | | property
in a manner not authorized or intended by the |
6 | | principal, the court may
order a guardian of the principal's |
7 | | person or estate to exercise any powers
of the principal under |
8 | | the agency, including the power to revoke the
agency, or may |
9 | | enter such other orders without appointment of a guardian as
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10 | | the court deems necessary to provide for the best interests of |
11 | | the
principal. |
12 | | (c) If the court finds that the agency requires
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13 | | interpretation, the court may construe the agency and instruct |
14 | | the agent,
but the court may not amend the agency. |
15 | | (d) If the court finds that the agent has not acted for the |
16 | | benefit of the principal in accordance with the terms of the |
17 | | agency and the Illinois Power of Attorney Act, or that the |
18 | | agent's action caused or threatened substantial harm to the |
19 | | principal's person or property in a manner not authorized or |
20 | | intended by the principal, then the agent shall not be |
21 | | authorized to pay or be reimbursed from the estate of the |
22 | | principal the attorneys' fees and costs of the agent in |
23 | | defending a proceeding brought pursuant to this Section. |
24 | | (e) Upon a finding that the agent's action has caused |
25 | | substantial harm to the principal's person or property, the |
26 | | court may assess against the agent reasonable costs and |
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1 | | attorney's fees to a prevailing party who is a provider agency |
2 | | as defined in Section 2 of the Elder Abuse and Neglect Act, a |
3 | | representative of the Office of the State Long Term Care |
4 | | Ombudsman, the State Guardian, a public guardian, or a |
5 | | governmental agency having regulatory authority to protect the |
6 | | welfare of the principal. |
7 | | (f) As used in this Section, the term "interested person" |
8 | | includes (1) the principal or the agent; (2) a guardian of the |
9 | | person, guardian of the estate, or other fiduciary charged with |
10 | | management of the principal's property; (3) the principal's |
11 | | spouse, parent, or descendant; (4) a person who would be a |
12 | | presumptive heir-at-law of the principal; (5) a person named as |
13 | | a beneficiary to receive any property, benefit, or contractual |
14 | | right upon the principal's death, or as a beneficiary of a |
15 | | trust created by or for the principal; (6) a provider agency as |
16 | | defined in Section 2 of the Elder Abuse and Neglect Act, a |
17 | | representative of the Office of the State Long Term Care |
18 | | Ombudsman, the State Guardian, a public guardian, or a |
19 | | governmental agency having regulatory authority to protect the |
20 | | welfare of the principal; and (7) the principal's caregiver or |
21 | | another person who demonstrates sufficient interest in the |
22 | | principal's welfare. |
23 | | (g) Absent court order directing a
guardian to exercise |
24 | | powers of the principal under the agency, a guardian
will have |
25 | | no power, duty or liability with respect to any property |
26 | | subject
to the agency or any personal or health care matters |
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1 | | covered by the agency. |
2 | | (h)
Proceedings under this Section shall be commenced in |
3 | | the county where the
guardian was appointed or, if no Illinois |
4 | | guardian is acting, then in the
county where the agent or |
5 | | principal resides or where the principal owns real property.
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6 | | (i) This Section shall not be construed to limit any other |
7 | | remedies available. |
8 | | (Source: P.A. 96-1195, eff. 7-1-11 .)
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9 | | Section 99. Effective date. This Act takes effect upon |
10 | | becoming law.".
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