HB1588 EngrossedLRB099 06361 RLC 26431 b

1    AN ACT concerning criminal law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Criminal Code of 2012 is amended by changing
5Section 17-56 as follows:
 
6    (720 ILCS 5/17-56)  (was 720 ILCS 5/16-1.3)
7    Sec. 17-56. Financial exploitation of an elderly person or
8a person with a disability.
9    (a) A person commits financial exploitation of an elderly
10person or a person with a disability when he or she stands in a
11position of trust or confidence with the elderly person or a
12person with a disability and he or she knowingly and by
13deception or intimidation obtains control over the property of
14an elderly person or a person with a disability or illegally
15uses the assets or resources of an elderly person or a person
16with a disability.
17    (b) Sentence. Financial exploitation of an elderly person
18or a person with a disability is: (1) a Class 4 felony if the
19value of the property is $300 or less, (2) a Class 3 felony if
20the value of the property is more than $300 but less than
21$5,000, (3) a Class 2 felony if the value of the property is
22$5,000 or more but less than $50,000, and (4) a Class 1 felony
23if the value of the property is $50,000 or more or if the

 

 

HB1588 Engrossed- 2 -LRB099 06361 RLC 26431 b

1elderly person is over 70 years of age and the value of the
2property is $15,000 or more or if the elderly person is 80
3years of age or older and the value of the property is $5,000
4or more.
5    (c) For purposes of this Section:
6        (1) "Elderly person" means a person 60 years of age or
7    older.
8        (2) "Person with a disability" means a person who
9    suffers from a physical or mental impairment resulting from
10    disease, injury, functional disorder or congenital
11    condition that impairs the individual's mental or physical
12    ability to independently manage his or her property or
13    financial resources, or both.
14        (3) "Intimidation" means the communication to an
15    elderly person or a person with a disability that he or she
16    shall be deprived of food and nutrition, shelter,
17    prescribed medication or medical care and treatment or
18    conduct as provided in Section 12-6 of this Code.
19        (4) "Deception" means, in addition to its meaning as
20    defined in Section 15-4 of this Code, a misrepresentation
21    or concealment of material fact relating to the terms of a
22    contract or agreement entered into with the elderly person
23    or person with a disability or to the existing or
24    pre-existing condition of any of the property involved in
25    such contract or agreement; or the use or employment of any
26    misrepresentation, false pretense or false promise in

 

 

HB1588 Engrossed- 3 -LRB099 06361 RLC 26431 b

1    order to induce, encourage or solicit the elderly person or
2    person with a disability to enter into a contract or
3    agreement.
4        (5) "Financial abuse" means:
5            (A) wrongfully taking or appropriating money or
6        property of an elderly person or person with a
7        disability, without regard to whether the person
8        taking or appropriating the money or property has a
9        fiduciary relationship with the elderly person or a
10        person with a disability; or
11            (B) when an elderly person or a person with a
12        disability requests that another person transfer to
13        the elderly person or a person with a disability any
14        money or property that the other person holds or
15        controls and that belongs to or is held in express
16        trust, constructive trust, or resulting trust for the
17        elderly person or a person with a disability, and the
18        other person, without good cause, either continues to
19        hold the money or property or fails to take reasonable
20        steps to make the money or property readily available
21        to the elderly person or a person with a disability
22        when:
23                (i) the ownership or control of the money or
24            property was acquired in whole or in part by the
25            other person or someone acting in concert with the
26            other person from the elderly person or a person

 

 

HB1588 Engrossed- 4 -LRB099 06361 RLC 26431 b

1            with a disability; and
2                (ii) the other person acts in bad faith, or
3            knew or should have known of the right of the
4            elderly person or a person with a disability to
5            have the money or property transferred as
6            requested or otherwise made available to the
7            elderly person or a person with a disability.
8        A transfer of money or property that is made for the
9    purpose of qualifying an elderly person or a person with a
10    disability for Medicaid benefits or for any other State or
11    federal assistance program, or the holding and exercise of
12    control over money or property after the transfer, does not
13    constitute a wrongful taking or appropriation under
14    subparagraph (A) of this paragraph (5) or the holding of
15    money or property without good cause for the purposes of
16    subparagraph (B) of this paragraph (5).
17        (6) "Physical abuse" means any of the following acts
18    committed against an elderly person or a person with a
19    disability:
20            (A) assault;
21            (B) battery;
22            (C) aggravated assault;
23            (D) aggravated battery;
24            (E) criminal sexual assault;
25            (F) aggravated criminal sexual assault;
26            (G) criminal sexual abuse;

 

 

HB1588 Engrossed- 5 -LRB099 06361 RLC 26431 b

1            (H) aggravated criminal sexual abuse;
2            (I) intimidation; or
3            (J) criminal abuse or neglect of an elderly person
4        or person with a disability.
5    The illegal use of the assets or resources of an elderly
6person or a person with a disability includes, but is not
7limited to, the misappropriation of those assets or resources
8by undue influence, breach of a fiduciary relationship, fraud,
9deception, extortion, or use of the assets or resources
10contrary to law.
11    A person stands in a position of trust and confidence with
12an elderly person or person with a disability when he (i) is a
13parent, spouse, adult child or other relative by blood or
14marriage of the elderly person or person with a disability,
15(ii) is a joint tenant or tenant in common with the elderly
16person or person with a disability, (iii) has a legal or
17fiduciary relationship with the elderly person or person with a
18disability, (iv) is a financial planning or investment
19professional, or (v) is a paid or unpaid caregiver for the
20elderly person or person with a disability.
21    (d) Limitations. Nothing in this Section shall be construed
22to limit the remedies available to the victim under the
23Illinois Domestic Violence Act of 1986.
24    (e) Good faith efforts. Nothing in this Section shall be
25construed to impose criminal liability on a person who has made
26a good faith effort to assist the elderly person or person with

 

 

HB1588 Engrossed- 6 -LRB099 06361 RLC 26431 b

1a disability in the management of his or her property, but
2through no fault of his or her own has been unable to provide
3such assistance.
4    (f) Not a defense. It shall not be a defense to financial
5exploitation of an elderly person or person with a disability
6that the accused reasonably believed that the victim was not an
7elderly person or person with a disability.
8    (g) Civil Liability.
9        (1) An elderly person or a person with a disability who
10    suffers injury, damage, or death by reason of physical
11    abuse or financial abuse may bring an action against any
12    person who has caused the physical or financial abuse. The
13    court shall award the following to a plaintiff who prevails
14    in an action under this subsection:
15            (A) an amount equal to 3 times all economic damages
16        resulting from the physical or financial abuse, or
17        $500, whichever amount is greater;
18            (B) an amount equal to 3 times all non-economic
19        damages resulting from the physical or financial
20        abuse;
21            (C) reasonable attorney's fees incurred by the
22        plaintiff; and
23            (D) reasonable fees for the services of a guardian
24        or guardian ad litem incurred by reason of the
25        litigation of a claim brought under this subsection.
26        (2) An action may be brought under this subsection only

 

 

HB1588 Engrossed- 7 -LRB099 06361 RLC 26431 b

1    by:
2            (A) an elderly person or a person with a
3        disability;
4            (B) a guardian, conservator, or attorney-in-fact
5        for an elderly person or a person with a disability;
6            (C) a personal representative for the estate of a
7        decedent who was an elderly person or a person with a
8        disability at the time the cause of action arose; or
9            (D) a trustee for a trust on behalf of the trustor
10        or the spouse of the trustor who is an elderly person
11        or a person with a disability.
12        (3) An action may be brought under this subsection only
13    for physical abuse or for financial abuse.
14        (4) A person commencing an action under this subsection
15    must serve a copy of the complaint on the Attorney General
16    within 30 days after the action is commenced. A person who
17    is charged by information or indictment with the offense of
18    financial exploitation of an elderly person or person with
19    a disability and who fails or refuses to return the
20    victim's property within 60 days following a written demand
21    from the victim or the victim's legal representative shall
22    be liable to the victim or to the estate of the victim in
23    damages of treble the amount of the value of the property
24    obtained, plus reasonable attorney fees and court costs.
25    The burden of proof that the defendant unlawfully obtained
26    the victim's property shall be by a preponderance of the

 

 

HB1588 Engrossed- 8 -LRB099 06361 RLC 26431 b

1    evidence. This subsection shall be operative whether or not
2    the defendant has been convicted of the offense.
3    (h) If a person is charged with financial exploitation of
4an elderly person or a person with a disability that involves
5the taking or loss of property valued at more than $5,000, a
6prosecuting attorney may file a petition with the circuit court
7of the county in which the defendant has been charged to freeze
8the assets of the defendant in an amount equal to but not
9greater than the alleged value of lost or stolen property in
10the defendant's pending criminal proceeding for purposes of
11restitution to the victim. The burden of proof required to
12freeze the defendant's assets shall be by a preponderance of
13the evidence.
14(Source: P.A. 96-1551, eff. 7-1-11; 97-482, eff. 1-1-12;
1597-865, eff. 1-1-13.)