Illinois General Assembly - Full Text of HB1588
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Full Text of HB1588  99th General Assembly

HB1588ham002 99TH GENERAL ASSEMBLY

Rep. Thomas Bennett

Filed: 4/20/2015

 

 


 

 


 
09900HB1588ham002LRB099 06361 RLC 34515 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        (1) "Elderly person" means a person 60 years of age or
14    older.
15        (2) "Person with a disability" means a person who
16    suffers from a physical or mental impairment resulting from
17    disease, injury, functional disorder or congenital
18    condition that impairs the individual's mental or physical
19    ability to independently manage his or her property or
20    financial resources, or both.
21        (3) "Intimidation" means the communication to an
22    elderly person or a person with a disability that he or she
23    shall be deprived of food and nutrition, shelter,
24    prescribed medication or medical care and treatment or
25    conduct as provided in Section 12-6 of this Code.
26        (4) "Deception" means, in addition to its meaning as

 

 

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1    defined in Section 15-4 of this Code, a misrepresentation
2    or concealment of material fact relating to the terms of a
3    contract or agreement entered into with the elderly person
4    or person with a disability or to the existing or
5    pre-existing condition of any of the property involved in
6    such contract or agreement; or the use or employment of any
7    misrepresentation, false pretense or false promise in
8    order to induce, encourage or solicit the elderly person or
9    person with a disability to enter into a contract or
10    agreement.
11        (5) "Financial abuse" means:
12            (A) wrongfully taking or appropriating money or
13        property of an elderly person or person with a
14        disability, without regard to whether the person
15        taking or appropriating the money or property has a
16        fiduciary relationship with the elderly person or a
17        person with a disability; or
18            (B) when an elderly person or a person with a
19        disability requests that another person transfer to
20        the elderly person or a person with a disability any
21        money or property that the other person holds or
22        controls and that belongs to or is held in express
23        trust, constructive trust, or resulting trust for the
24        elderly person or a person with a disability, and the
25        other person, without good cause, either continues to
26        hold the money or property or fails to take reasonable

 

 

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

 

 

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1            (A) assault;
2            (B) battery;
3            (C) aggravated assault;
4            (D) aggravated battery;
5            (E) criminal sexual assault;
6            (F) aggravated criminal sexual assault;
7            (G) criminal sexual abuse;
8            (H) aggravated criminal sexual abuse;
9            (I) intimidation; or
10            (J) criminal abuse or neglect of an elderly person
11        or person with a disability.
12    The illegal use of the assets or resources of an elderly
13person or a person with a disability includes, but is not
14limited to, the misappropriation of those assets or resources
15by undue influence, breach of a fiduciary relationship, fraud,
16deception, extortion, or use of the assets or resources
17contrary to law.
18    A person stands in a position of trust and confidence with
19an elderly person or person with a disability when he (i) is a
20parent, spouse, adult child or other relative by blood or
21marriage of the elderly person or person with a disability,
22(ii) is a joint tenant or tenant in common with the elderly
23person or person with a disability, (iii) has a legal or
24fiduciary relationship with the elderly person or person with a
25disability, (iv) is a financial planning or investment
26professional, or (v) is a paid or unpaid caregiver for the

 

 

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1elderly person or person with a disability.
2    (d) Limitations. Nothing in this Section shall be construed
3to limit the remedies available to the victim under the
4Illinois Domestic Violence Act of 1986.
5    (e) Good faith efforts. Nothing in this Section shall be
6construed to impose criminal liability on a person who has made
7a good faith effort to assist the elderly person or person with
8a disability in the management of his or her property, but
9through no fault of his or her own has been unable to provide
10such assistance.
11    (f) Not a defense. It shall not be a defense to financial
12exploitation of an elderly person or person with a disability
13that the accused reasonably believed that the victim was not an
14elderly person or person with a disability.
15    (g) Civil Liability.
16        (1) An elderly person or a person with a disability who
17    suffers injury, damage, or death by reason of physical
18    abuse or financial abuse may bring an action against any
19    person who has caused the physical or financial abuse. The
20    court shall award the following to a plaintiff who prevails
21    in an action under this subsection:
22            (A) an amount equal to 3 times all economic damages
23        resulting from the physical or financial abuse, or
24        $500, whichever amount is greater;
25            (B) an amount equal to 3 times all non-economic
26        damages resulting from the physical or financial

 

 

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1        abuse;
2            (C) reasonable attorney's fees incurred by the
3        plaintiff; and
4            (D) reasonable fees for the services of a guardian
5        or guardian ad litem incurred by reason of the
6        litigation of a claim brought under this subsection.
7        (2) An action may be brought under this subsection only
8    by:
9            (A) an elderly person or a person with a
10        disability;
11            (B) a guardian, conservator, or attorney-in-fact
12        for an elderly person or a person with a disability;
13            (C) a personal representative for the estate of a
14        decedent who was an elderly person or a person with a
15        disability at the time the cause of action arose; or
16            (D) a trustee for a trust on behalf of the trustor
17        or the spouse of the trustor who is an elderly person
18        or a person with a disability.
19        (3) An action may be brought under this subsection only
20    for physical abuse or for financial abuse.
21        (4) A person commencing an action under this subsection
22    must serve a copy of the complaint on the Attorney General
23    within 30 days after the action is commenced. A person who
24    is charged by information or indictment with the offense of
25    financial exploitation of an elderly person or person with
26    a disability and who fails or refuses to return the

 

 

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1    victim's property within 60 days following a written demand
2    from the victim or the victim's legal representative shall
3    be liable to the victim or to the estate of the victim in
4    damages of treble the amount of the value of the property
5    obtained, plus reasonable attorney fees and court costs.
6    The burden of proof that the defendant unlawfully obtained
7    the victim's property shall be by a preponderance of the
8    evidence. This subsection shall be operative whether or not
9    the defendant has been convicted of the offense.
10    (h) If a person is charged with financial exploitation of
11an elderly person or a person with a disability that involves
12the taking or loss of property valued at more than $5,000, a
13prosecuting attorney may file a petition with the circuit court
14of the county in which the defendant has been charged to freeze
15the assets of the defendant in an amount equal to but not
16greater than the alleged value of lost or stolen property in
17the defendant's pending criminal proceeding for purposes of
18restitution to the victim. The burden of proof required to
19freeze the defendant's assets shall be by a preponderance of
20the evidence.
21(Source: P.A. 96-1551, eff. 7-1-11; 97-482, eff. 1-1-12;
2297-865, eff. 1-1-13.)".