Rep. Thomas Bennett

Filed: 4/15/2015

 

 


 

 


 
09900HB1588ham001LRB099 06361 RLC 33869 a

1
AMENDMENT TO HOUSE BILL 1588

2    AMENDMENT NO. ______. Amend House Bill 1588 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Criminal Code of 2012 is amended by
5changing Section 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.

 

 

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1    (b) Sentence. Financial exploitation of an elderly person
2or a person with a disability is: (1) a Class 4 felony if the
3value of the property is $300 or less, (2) a Class 3 felony if
4the value of the property is more than $300 but less than
5$5,000, (3) a Class 2 felony if the value of the property is
6$5,000 or more but less than $50,000, and (4) a Class 1 felony
7if the value of the property is $50,000 or more or if the
8elderly person is over 70 years of age and the value of the
9property is $15,000 or more or if the elderly person is 80
10years of age or older and the value of the property is $5,000
11or more.
12    (c) For purposes of this Section:
13        (0.05) "Economic damages" means all damages which are
14    tangible, such as damages for past and future medical
15    expenses, loss of income or earnings, and other property
16    loss.
17        (0.06) "Non-economic damages" means damages which are
18    intangible, including but not limited to damages for pain
19    and suffering, disability, disfigurement, loss of
20    consortium, and loss of society.
21        (1) "Elderly person" means a person 60 years of age or
22    older.
23        (2) "Person with a disability" means a person who
24    suffers from a physical or mental impairment resulting from
25    disease, injury, functional disorder or congenital
26    condition that impairs the individual's mental or physical

 

 

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1    ability to independently manage his or her property or
2    financial resources, or both.
3        (3) "Intimidation" means the communication to an
4    elderly person or a person with a disability that he or she
5    shall be deprived of food and nutrition, shelter,
6    prescribed medication or medical care and treatment or
7    conduct as provided in Section 12-6 of this Code.
8        (4) "Deception" means, in addition to its meaning as
9    defined in Section 15-4 of this Code, a misrepresentation
10    or concealment of material fact relating to the terms of a
11    contract or agreement entered into with the elderly person
12    or person with a disability or to the existing or
13    pre-existing condition of any of the property involved in
14    such contract or agreement; or the use or employment of any
15    misrepresentation, false pretense or false promise in
16    order to induce, encourage or solicit the elderly person or
17    person with a disability to enter into a contract or
18    agreement.
19        (5) "Financial abuse" means:
20            (A) wrongfully taking or appropriating money or
21        property of an elderly person or person with a
22        disability, without regard to whether the person
23        taking or appropriating the money or property has a
24        fiduciary relationship with the elderly person or a
25        person with a disability; or
26            (B) when an elderly person or a person with a

 

 

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1        disability requests that another person transfer to
2        the elderly person or a person with a disability any
3        money or property that the other person holds or
4        controls and that belongs to or is held in express
5        trust, constructive trust, or resulting trust for the
6        elderly person or a person with a disability, and the
7        other person, without good cause, either continues to
8        hold the money or property or fails to take reasonable
9        steps to make the money or property readily available
10        to the elderly person or a person with a disability
11        when:
12                (i) the ownership or control of the money or
13            property was acquired in whole or in part by the
14            other person or someone acting in concert with the
15            other person from the elderly person or a person
16            with a disability; and
17                (ii) the other person acts in bad faith, or
18            knew or should have known of the right of the
19            elderly person or a person with a disability to
20            have the money or property transferred as
21            requested or otherwise made available to the
22            elderly person or a person with a disability.
23        A transfer of money or property that is made for the
24    purpose of qualifying an elderly person or a person with a
25    disability for Medicaid benefits or for any other State or
26    federal assistance program, or the holding and exercise of

 

 

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1    control over money or property after the transfer, does not
2    constitute a wrongful taking or appropriation under
3    subparagraph (A) of this paragraph (5) or the holding of
4    money or property without good cause for the purposes of
5    subparagraph (B) of this paragraph (5).
6        (6) "Physical abuse" means any of the following acts
7    committed against an elderly person or a person with a
8    disability:
9            (A) assault;
10            (B) battery;
11            (C) aggravated assault;
12            (D) aggravated battery;
13            (E) criminal sexual assault;
14            (F) aggravated criminal sexual assault;
15            (G) criminal sexual abuse;
16            (H) aggravated criminal sexual abuse;
17            (I) intimidation; or
18            (J) criminal abuse or neglect of an elderly person
19        or person with a disability.
20    The illegal use of the assets or resources of an elderly
21person or a person with a disability includes, but is not
22limited to, the misappropriation of those assets or resources
23by undue influence, breach of a fiduciary relationship, fraud,
24deception, extortion, or use of the assets or resources
25contrary to law.
26    A person stands in a position of trust and confidence with

 

 

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1an elderly person or person with a disability when he (i) is a
2parent, spouse, adult child or other relative by blood or
3marriage of the elderly person or person with a disability,
4(ii) is a joint tenant or tenant in common with the elderly
5person or person with a disability, (iii) has a legal or
6fiduciary relationship with the elderly person or person with a
7disability, (iv) is a financial planning or investment
8professional, or (v) is a paid or unpaid caregiver for the
9elderly person or person with a disability.
10    (d) Limitations. Nothing in this Section shall be construed
11to limit the remedies available to the victim under the
12Illinois Domestic Violence Act of 1986.
13    (e) Good faith efforts. Nothing in this Section shall be
14construed to impose criminal liability on a person who has made
15a good faith effort to assist the elderly person or person with
16a disability in the management of his or her property, but
17through no fault of his or her own has been unable to provide
18such assistance.
19    (f) Not a defense. It shall not be a defense to financial
20exploitation of an elderly person or person with a disability
21that the accused reasonably believed that the victim was not an
22elderly person or person with a disability.
23    (g) Civil Liability.
24        (1) An elderly person or a person with a disability who
25    suffers injury, damage, or death by reason of physical
26    abuse or financial abuse may bring an action against any

 

 

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1    person who has caused the physical or financial abuse or
2    who has permitted another person to engage in physical or
3    financial abuse. The court shall award the following to a
4    plaintiff who prevails in an action under this subsection:
5            (A) an amount equal to 3 times all economic damages
6        resulting from the physical or financial abuse, or
7        $500, whichever amount is greater;
8            (B) an amount equal to 3 times all non-economic
9        damages resulting from the physical or financial
10        abuse;
11            (C) reasonable attorney's fees incurred by the
12        plaintiff; and
13            (D) reasonable fees for the services of a guardian
14        or guardian ad litem incurred by reason of the
15        litigation of a claim brought under this subsection.
16        (2) An action may be brought under this subsection only
17    by:
18            (A) an elderly person or a person with a
19        disability;
20            (B) a guardian, conservator, or attorney-in-fact
21        for an elderly person or a person with a disability;
22            (C) a personal representative for the estate of a
23        decedent who was an elderly person or a person with a
24        disability at the time the cause of action arose; or
25            (D) a trustee for a trust on behalf of the trustor
26        or the spouse of the trustor who is an elderly person

 

 

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1        or a person with a disability.
2        (3) An action may be brought under this subsection only
3    for physical abuse or for financial abuse.
4        (4) An action may be brought under this subsection
5    against a person for permitting another person to engage in
6    physical or financial abuse if the person knowingly acts or
7    fails to act under circumstances in which a reasonable
8    person should have known of the physical or financial
9    abuse.
10        (5) A person commencing an action under this subsection
11    must serve a copy of the complaint on the Attorney General
12    within 30 days after the action is commenced. A person who
13    is charged by information or indictment with the offense of
14    financial exploitation of an elderly person or person with
15    a disability and who fails or refuses to return the
16    victim's property within 60 days following a written demand
17    from the victim or the victim's legal representative shall
18    be liable to the victim or to the estate of the victim in
19    damages of treble the amount of the value of the property
20    obtained, plus reasonable attorney fees and court costs.
21    The burden of proof that the defendant unlawfully obtained
22    the victim's property shall be by a preponderance of the
23    evidence. This subsection shall be operative whether or not
24    the defendant has been convicted of the offense.
25    (h) If a person is charged with financial exploitation of
26an elderly person or a person with a disability that involves

 

 

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1the taking or loss of property valued at more than $5,000, a
2prosecuting attorney may file a petition with the circuit court
3of the county in which the defendant has been charged to freeze
4the assets of the defendant in an amount equal to but not
5greater than the alleged value of lost or stolen property in
6the defendant's pending criminal proceeding for purposes of
7restitution to the victim. The burden of proof required to
8freeze the defendant's assets shall be by a preponderance of
9the evidence.
10(Source: P.A. 96-1551, eff. 7-1-11; 97-482, eff. 1-1-12;
1197-865, eff. 1-1-13.)".