103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
SB3804

 

Introduced 2/9/2024, by Sen. Mike Simmons

 

SYNOPSIS AS INTRODUCED:
 
320 ILCS 20/2  from Ch. 23, par. 6602
320 ILCS 20/2.5 new

    Amends the Adult Protective Services Act. Expands the list of mandated reporters under the Act to include broker-dealers and officers and employees of financial institutions. Provides that financial exploitation of an adult with disabilities or a person aged 60 or older occurs when a person or entity (i) takes, secretes, appropriates, obtains, or retains real or personal property of an eligible adult for a wrongful use or with intent to defraud, or both; (ii) assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an eligible adult for a wrongful use or with intent to defraud, or both; (iii) knowingly aids and abets in the taking, secreting, appropriating, obtaining, or retaining of real or personal property of an eligible adult for a wrongful use or with intent to defraud, or both; or (iv) takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an eligible adult by undue influence. Sets forth when a financial institution, the officers and employees of a financial institution, a broker-dealer, or an investment adviser is deemed to have assisted in taking, secreting, appropriating, obtaining, or retaining real or personal property of an eligible adult. Sets forth when all other mandated reporters are deemed to have assisted in taking, secreting, appropriating, obtaining, or retaining real or personal property of an eligible adult. Exempts from liability nonsupervisory employees of a financial institution. Contains other provisions.


LRB103 35144 KTG 65108 b

 

 

A BILL FOR

 

SB3804LRB103 35144 KTG 65108 b

1    AN ACT concerning aging.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Adult Protective Services Act is amended by
5changing Section 2 and by adding Section 2.5 as follows:
 
6    (320 ILCS 20/2)  (from Ch. 23, par. 6602)
7    Sec. 2. Definitions. As used in this Act, unless the
8context requires otherwise:
9    (a) "Abandonment" means the desertion or willful forsaking
10of an eligible adult by an individual responsible for the care
11and custody of that eligible adult under circumstances in
12which a reasonable person would continue to provide care and
13custody. Nothing in this Act shall be construed to mean that an
14eligible adult is a victim of abandonment because of health
15care services provided or not provided by licensed health care
16professionals.
17    (a-1) "Abuse" means causing any physical, mental or sexual
18injury to an eligible adult, including exploitation of such
19adult's financial resources, and abandonment.
20    Nothing in this Act shall be construed to mean that an
21eligible adult is a victim of abuse, abandonment, neglect, or
22self-neglect for the sole reason that he or she is being
23furnished with or relies upon treatment by spiritual means

 

 

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1through prayer alone, in accordance with the tenets and
2practices of a recognized church or religious denomination.
3    Nothing in this Act shall be construed to mean that an
4eligible adult is a victim of abuse because of health care
5services provided or not provided by licensed health care
6professionals.
7    Nothing in this Act shall be construed to mean that an
8eligible adult is a victim of abuse in cases of criminal
9activity by strangers, telemarketing scams, consumer fraud,
10internet fraud, home repair disputes, complaints against a
11homeowners' association, or complaints between landlords and
12tenants.
13    (a-5) "Abuser" means a person who is a family member,
14caregiver, or another person who has a continuing relationship
15with the eligible adult and abuses, abandons, neglects, or
16financially exploits an eligible adult.
17    (a-6) "Adult with disabilities" means a person aged 18
18through 59 who resides in a domestic living situation and
19whose disability as defined in subsection (c-5) impairs his or
20her ability to seek or obtain protection from abuse,
21abandonment, neglect, or exploitation.
22    (a-7) "Broker-dealer" means any person engaged in the
23business of effecting transactions in securities in this State
24for the account of others or for that person's own account and
25who is registered with the United States Securities and
26Exchange Commission.

 

 

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1    (a-10) (a-7) "Caregiver" means a person who either as a
2result of a family relationship, voluntarily, or in exchange
3for compensation has assumed responsibility for all or a
4portion of the care of an eligible adult who needs assistance
5with activities of daily living or instrumental activities of
6daily living.
7    (b) "Department" means the Department on Aging of the
8State of Illinois.
9    (c) "Director" means the Director of the Department.
10    (c-5) "Disability" means a physical or mental disability,
11including, but not limited to, a developmental disability, an
12intellectual disability, a mental illness as defined under the
13Mental Health and Developmental Disabilities Code, or dementia
14as defined under the Alzheimer's Disease Assistance Act.
15    (d) "Domestic living situation" means a residence where
16the eligible adult at the time of the report lives alone or
17with his or her family or a caregiver, or others, or other
18community-based unlicensed facility, but is not:
19        (1) A licensed facility as defined in Section 1-113 of
20    the Nursing Home Care Act;
21        (1.5) A facility licensed under the ID/DD Community
22    Care Act;
23        (1.6) A facility licensed under the MC/DD Act;
24        (1.7) A facility licensed under the Specialized Mental
25    Health Rehabilitation Act of 2013;
26        (2) A "life care facility" as defined in the Life Care

 

 

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1    Facilities Act;
2        (3) A home, institution, or other place operated by
3    the federal government or agency thereof or by the State
4    of Illinois;
5        (4) A hospital, sanitarium, or other institution, the
6    principal activity or business of which is the diagnosis,
7    care, and treatment of human illness through the
8    maintenance and operation of organized facilities
9    therefor, which is required to be licensed under the
10    Hospital Licensing Act;
11        (5) A "community living facility" as defined in the
12    Community Living Facilities Licensing Act;
13        (6) (Blank);
14        (7) A "community-integrated living arrangement" as
15    defined in the Community-Integrated Living Arrangements
16    Licensure and Certification Act or a "community
17    residential alternative" as licensed under that Act;
18        (8) An assisted living or shared housing establishment
19    as defined in the Assisted Living and Shared Housing Act;
20    or
21        (9) A supportive living facility as described in
22    Section 5-5.01a of the Illinois Public Aid Code.
23    (e) "Eligible adult" means either an adult with
24disabilities aged 18 through 59 or a person aged 60 or older
25who resides in a domestic living situation and is, or is
26alleged to be, abused, abandoned, neglected, or financially

 

 

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1exploited by another individual or who neglects himself or
2herself. "Eligible adult" also includes an adult who resides
3in any of the facilities that are excluded from the definition
4of "domestic living situation" under paragraphs (1) through
5(9) of subsection (d), if either: (i) the alleged abuse,
6abandonment, or neglect occurs outside of the facility and not
7under facility supervision and the alleged abuser is a family
8member, caregiver, or another person who has a continuing
9relationship with the adult; or (ii) the alleged financial
10exploitation is perpetrated by a family member, caregiver, or
11another person who has a continuing relationship with the
12adult, but who is not an employee of the facility where the
13adult resides.
14    (f) "Emergency" means a situation in which an eligible
15adult is living in conditions presenting a risk of death or
16physical, mental or sexual injury and the provider agency has
17reason to believe the eligible adult is unable to consent to
18services which would alleviate that risk.
19    (f-1) "Financial exploitation" means the use of an
20eligible adult's resources by another to the disadvantage of
21that adult or the profit or advantage of a person other than
22that adult.
23    (f-3) "Investment advisor" means any person required to
24register as an investment adviser or investment adviser
25representative under Section 8 of the Illinois Securities Law
26of 1953, which for purposes of this Act excludes any bank,

 

 

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1trust company, savings bank, or credit union, or their
2respective employees.
3    (f-5) "Mandated reporter" means any of the following
4persons while engaged in carrying out their professional
5duties:
6        (1) a professional or professional's delegate while
7    engaged in: (i) social services, (ii) law enforcement,
8    (iii) education, (iv) the care of an eligible adult or
9    eligible adults, or (v) any of the occupations required to
10    be licensed under the Behavior Analyst Licensing Act, the
11    Clinical Psychologist Licensing Act, the Clinical Social
12    Work and Social Work Practice Act, the Illinois Dental
13    Practice Act, the Dietitian Nutritionist Practice Act, the
14    Marriage and Family Therapy Licensing Act, the Medical
15    Practice Act of 1987, the Naprapathic Practice Act, the
16    Nurse Practice Act, the Nursing Home Administrators
17    Licensing and Disciplinary Act, the Illinois Occupational
18    Therapy Practice Act, the Illinois Optometric Practice Act
19    of 1987, the Pharmacy Practice Act, the Illinois Physical
20    Therapy Act, the Physician Assistant Practice Act of 1987,
21    the Podiatric Medical Practice Act of 1987, the
22    Respiratory Care Practice Act, the Professional Counselor
23    and Clinical Professional Counselor Licensing and Practice
24    Act, the Illinois Speech-Language Pathology and Audiology
25    Practice Act, the Veterinary Medicine and Surgery Practice
26    Act of 2004, and the Illinois Public Accounting Act;

 

 

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1        (1.5) an employee of an entity providing developmental
2    disabilities services or service coordination funded by
3    the Department of Human Services;
4        (2) an employee of a vocational rehabilitation
5    facility prescribed or supervised by the Department of
6    Human Services;
7        (3) an administrator, employee, or person providing
8    services in or through an unlicensed community based
9    facility;
10        (4) any religious practitioner who provides treatment
11    by prayer or spiritual means alone in accordance with the
12    tenets and practices of a recognized church or religious
13    denomination, except as to information received in any
14    confession or sacred communication enjoined by the
15    discipline of the religious denomination to be held
16    confidential;
17        (5) field personnel of the Department of Healthcare
18    and Family Services, Department of Public Health, and
19    Department of Human Services, and any county or municipal
20    health department;
21        (6) personnel of the Department of Human Services, the
22    Guardianship and Advocacy Commission, the State Fire
23    Marshal, local fire departments, the Department on Aging
24    and its subsidiary Area Agencies on Aging and provider
25    agencies, except the State Long Term Care Ombudsman and
26    any of his or her representatives or volunteers where

 

 

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1    prohibited from making such a report pursuant to 45 CFR
2    1324.11(e)(3)(iv);
3        (7) any employee of the State of Illinois not
4    otherwise specified herein who is involved in providing
5    services to eligible adults, including professionals
6    providing medical or rehabilitation services and all other
7    persons having direct contact with eligible adults;
8        (8) a person who performs the duties of a coroner or
9    medical examiner;
10        (9) a person who performs the duties of a paramedic or
11    an emergency medical technician; or
12        (10) a person who performs the duties of an investment
13    advisor; .
14        (11) a person who performs the duties of a
15    broker-advisor; or
16        (12) an officer or employee of a financial
17    institution.
18    (g) "Neglect" means another individual's failure to
19provide an eligible adult with or willful withholding from an
20eligible adult the necessities of life including, but not
21limited to, food, clothing, shelter or health care. This
22subsection does not create any new affirmative duty to provide
23support to eligible adults. Nothing in this Act shall be
24construed to mean that an eligible adult is a victim of neglect
25because of health care services provided or not provided by
26licensed health care professionals.

 

 

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1    (h) "Provider agency" means any public or nonprofit agency
2in a planning and service area that is selected by the
3Department or appointed by the regional administrative agency
4with prior approval by the Department on Aging to receive and
5assess reports of alleged or suspected abuse, abandonment,
6neglect, or financial exploitation. A provider agency is also
7referenced as a "designated agency" in this Act.
8    (i) "Regional administrative agency" means any public or
9nonprofit agency in a planning and service area that provides
10regional oversight and performs functions as set forth in
11subsection (b) of Section 3 of this Act. The Department shall
12designate an Area Agency on Aging as the regional
13administrative agency or, in the event the Area Agency on
14Aging in that planning and service area is deemed by the
15Department to be unwilling or unable to provide those
16functions, the Department may serve as the regional
17administrative agency or designate another qualified entity to
18serve as the regional administrative agency; any such
19designation shall be subject to terms set forth by the
20Department.
21    (i-5) "Self-neglect" means a condition that is the result
22of an eligible adult's inability, due to physical or mental
23impairments, or both, or a diminished capacity, to perform
24essential self-care tasks that substantially threaten his or
25her own health, including: providing essential food, clothing,
26shelter, and health care; and obtaining goods and services

 

 

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1necessary to maintain physical health, mental health,
2emotional well-being, and general safety. The term includes
3compulsive hoarding, which is characterized by the acquisition
4and retention of large quantities of items and materials that
5produce an extensively cluttered living space, which
6significantly impairs the performance of essential self-care
7tasks or otherwise substantially threatens life or safety.
8    (j) "Substantiated case" means a reported case of alleged
9or suspected abuse, abandonment, neglect, financial
10exploitation, or self-neglect in which a provider agency,
11after assessment, determines that there is reason to believe
12abuse, abandonment, neglect, or financial exploitation has
13occurred.
14    (k) "Verified" means a determination that there is "clear
15and convincing evidence" that the specific injury or harm
16alleged was the result of abuse, abandonment, neglect, or
17financial exploitation.
18(Source: P.A. 102-244, eff. 1-1-22; 102-953, eff. 5-27-22;
19103-329, eff. 1-1-24.)
 
20    (320 ILCS 20/2.5 new)
21    Sec. 2.5. Financial exploitation.
22    (a) As used in this Section, unless the context requires
23otherwise:
24    "Financial institution" means any of the following:
25        (1) A depository institution, as defined in Section

 

 

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1    3(c) of the Federal Deposit Insurance Act (12 U.S.C.
2    1813(c)).
3        (2) An institution-affiliated party, as defined in
4    Section 3(u) of the Federal Deposit Insurance Act (12
5    U.S.C. 1813(u)).
6        (3) A federal credit union or state credit union, as
7    defined in Section 101 of the Federal Credit Union Act (12
8    U.S.C. 1752), including, but not limited to, an
9    institution-affiliated party of a credit union, as defined
10    in Section 206(r) of the Federal Credit Union Act (12
11    U.S.C. 1786(r)).
12    "Representative" means a person or entity that is either
13of the following:
14        (1) A conservator, trustee, or other representative of
15    the estate of an eligible adult.
16        (2) An attorney-in-fact of an eligible adult who acts
17    within the authority of the power of attorney.
18    (b) Financial exploitation of an eligible adult occurs
19when a person or entity does any of the following:
20        (1) Takes, secretes, appropriates, obtains, or retains
21    real or personal property of an eligible adult for a
22    wrongful use or with intent to defraud, or both.
23        (2) Assists in taking, secreting, appropriating,
24    obtaining, or retaining real or personal property of an
25    eligible adult for a wrongful use or with intent to
26    defraud, or both.

 

 

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1        (3) Knowingly aids and abets in the taking, secreting,
2    appropriating, obtaining, or retaining of real or personal
3    property of an eligible adult for a wrongful use or with
4    intent to defraud, or both.
5        (4) Takes, secretes, appropriates, obtains, or
6    retains, or assists in taking, secreting, appropriating,
7    obtaining, or retaining, real or personal property of an
8    eligible adult by undue influence.
9    (c) A person or entity is deemed to have taken, secreted,
10appropriated, obtained, or retained property for a wrongful
11use or assisted in taking, secreting, appropriating,
12obtaining, or retaining property for a wrongful use, if, among
13other things, the person or entity takes, secretes,
14appropriates, obtains, or retains the property or assists in
15taking, secreting, appropriating, obtaining, or retaining the
16property and the person or entity knew or should have known
17that this conduct is likely to be harmful to the eligible
18adult.
19    (d) A person or entity takes, secretes, appropriates,
20obtains, or retains real or personal property when an eligible
21adult is deprived of any property right, including by means of
22an agreement, donative transfer, or testamentary bequest,
23regardless of whether the property is held directly or by a
24representative of an eligible adult.
25    (e) Assisting in the financial exploitation of an eligible
26adult occurs when a person or entity does either of the

 

 

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1following:
2        (1) For a financial institution, an officer or
3    employee of a financial institution, a broker-dealer, or
4    an investment advisor, executing a transaction with or
5    processing a transaction on behalf of an eligible adult
6    for which both of the following apply:
7            (A) The eligible adult interacts with one or more
8        officers or employees of the financial institution or
9        with the broker-dealer or investment advisor in the
10        process of requesting, initiating, or completing the
11        transaction.
12            (B) The financial institution, the officer or
13        employee of the financial institution, the
14        broker-dealer, or the investment advisor fails to act
15        as a reasonable person or entity in a like position
16        would, considering the surrounding facts and
17        circumstances, including the transaction history of
18        the eligible adult, whether the transaction is aligned
19        with prevailing business practices, and whether the
20        eligible adult exhibits multiple red flags, in
21        executing the transaction with or processing the
22        transaction on behalf of the eligible adult. As used
23        in this subparagraph, "red flags" refers to the
24        behavioral and financial red flags enumerated in Elder
25        Financial Exploitation Advisory in FinCEN Advisory
26        FIN-2022-A002 by the United States Department of the

 

 

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1        Treasury.
2        (2) For any other mandated reporter not listed in
3    paragraph (1), failing to act as a reasonable person in a
4    like position would, considering the surrounding facts and
5    circumstances, including, but not limited to, any of the
6    following:
7            (A) The vulnerability of the eligible adult.
8            (B) The extent to which the eligible adult relied
9        on the mandated reporter to handle the eligible
10        adult's finances or for financial advice or financial
11        decisions.
12            (C) Any information the eligible adult provided to
13        the mandated reporter about the situation.
14            (D) The mandated reporter's past interactions with
15        the eligible adult and whether the eligible adult's
16        behavior was markedly different than in the eligible
17        adult's prior interactions with the mandated reporter.
18            (E) Whether the mandated reporter has a fiduciary
19        duty to the eligible adult.
20            (F) Any instructions or information the mandated
21        reporter has been given about the eligible adult's
22        capacity or ability to make decisions.
23            (G) Any trainings the mandated reporter has taken
24        or should have taken, or information the mandated
25        reporter has received or should have received, on the
26        subjects of elder abuse and financial exploitation.

 

 

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1    (f)(1) For purposes of paragraph (1) of subsection (e), a
2financial institution, an officer or employee of a financial
3institution, a broker-dealer, or an investment advisor shall
4be deemed to have acted reasonably if the person or entity
5proves that, at the time that the transaction was requested,
6the person or entity gave the eligible adult an explanation
7and warning, verbally and in writing, regarding the person's
8or entity's knowledge of, or suspicion of, financial
9exploitation occurring with respect to that transaction, and
10if either of the following is met:
11        (A) If the eligible adult has designated a trusted
12    contact person to receive notification of any known or
13    suspected financial exploitation, or there is a joint
14    holder on the account for which the transaction is
15    requested, the person or entity contacted the trusted
16    contact person or joint account holder and obtained
17    consent for the transaction.
18        (B)(i) If the financial institution, officer or
19    employee of the financial institution, broker-dealer, or
20    investment advisor was unable to communicate with and
21    obtain the consent of a secondary authorized account
22    holder or trusted contact person, or there was no joint
23    account holder or designated trusted contact person, the
24    person or entity refused the transaction, or notified the
25    appropriate provider agency and law enforcement and held
26    the transaction for 15 business days or until the provider

 

 

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1    agency or law enforcement informed the person or entity
2    that the transaction should be completed. If, at any time
3    during the 15-day period, the eligible adult informs the
4    person or entity that the eligible adult does not wish to
5    complete the transaction, the person or entity does not
6    act reasonably if they complete the transaction anyway.
7        (ii) Notwithstanding any other law to the contrary,
8    for the purposes of item (i), a financial institution,
9    officer or employee of the financial institution,
10    broker-dealer, or investment advisor is authorized to
11    delay or refuse a requested transaction if the person or
12    entity notified the provider agency and law enforcement.
13    (2) For the purposes of paragraph (1) of subsection (e), a
14nonsupervisory employee of a financial institution may not be
15held personally liable in his or her individual capacity for
16violations of this Section. However, this Section does not
17affect the liability of the financial institution for its own
18acts or under the theory of respondeat superior.
19    (g) Nothing in this Section shall in any way affect or
20contravene any other reporting requirements under this Act.
21    (h) Nothing in this Section shall apply to criminal
22prosecutions of financial exploitation of an elderly person or
23a person with a disability.
24    (i) Nothing in this Section shall be construed to prevent
25or significantly interfere with any financial institution's
26exercise of its powers under federal law.

 

 

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1    (j) If any provision of this Section or its application to
2any person or circumstance is held invalid, the invalidity of
3that provision or application does not affect other provisions
4or applications of this Section that can be given effect
5without the invalid provision or application.