Full Text of SB3804 103rd General Assembly
SB3804sam001 103RD GENERAL ASSEMBLY | Sen. Mike Simmons Filed: 3/18/2024 | | 10300SB3804sam001 | | LRB103 35144 KTG 71122 a |
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| 1 | | AMENDMENT TO SENATE BILL 3804
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 3804 by replacing | 3 | | everything after the enacting clause with the following: | 4 | | "Section 5. The Adult Protective Services Act is amended | 5 | | by changing 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 | 8 | | context requires otherwise: | 9 | | (a) "Abandonment" means the desertion or willful forsaking | 10 | | of an eligible adult by an individual responsible for the care | 11 | | and custody of that eligible adult under circumstances in | 12 | | which a reasonable person would continue to provide care and | 13 | | custody. Nothing in this Act shall be construed to mean that an | 14 | | eligible adult is a victim of abandonment because of health | 15 | | care services provided or not provided by licensed health care | 16 | | professionals. |
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| 1 | | (a-1) "Abuse" means causing any physical, mental or sexual | 2 | | injury to an eligible adult, including exploitation of such | 3 | | adult's financial resources, and abandonment. | 4 | | Nothing in this Act shall be construed to mean that an | 5 | | eligible adult is a victim of abuse, abandonment, neglect, or | 6 | | self-neglect for the sole reason that he or she is being | 7 | | furnished with or relies upon treatment by spiritual means | 8 | | through prayer alone, in accordance with the tenets and | 9 | | practices of a recognized church or religious denomination. | 10 | | Nothing in this Act shall be construed to mean that an | 11 | | eligible adult is a victim of abuse because of health care | 12 | | services provided or not provided by licensed health care | 13 | | professionals. | 14 | | Nothing in this Act shall be construed to mean that an | 15 | | eligible adult is a victim of abuse in cases of criminal | 16 | | activity by strangers, telemarketing scams, consumer fraud, | 17 | | internet fraud, home repair disputes, complaints against a | 18 | | homeowners' association, or complaints between landlords and | 19 | | tenants. | 20 | | (a-5) "Abuser" means a person who is a family member, | 21 | | caregiver, or another person who has a continuing relationship | 22 | | with the eligible adult and abuses, abandons, neglects, or | 23 | | financially exploits an eligible adult. | 24 | | (a-6) "Adult with disabilities" means a person aged 18 | 25 | | through 59 who resides in a domestic living situation and | 26 | | whose disability as defined in subsection (c-5) impairs his or |
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| 1 | | her ability to seek or obtain protection from abuse, | 2 | | abandonment, neglect, or exploitation. | 3 | | (a-7) "Broker-dealer" means any person engaged in the | 4 | | business of effecting transactions in securities in this State | 5 | | for the account of others or for that person's own account and | 6 | | who is registered with the United States Securities and | 7 | | Exchange Commission. | 8 | | (a-10_ (a-7) "Caregiver" means a person who either as a | 9 | | result of a family relationship, voluntarily, or in exchange | 10 | | for compensation has assumed responsibility for all or a | 11 | | portion of the care of an eligible adult who needs assistance | 12 | | with activities of daily living or instrumental activities of | 13 | | daily living. | 14 | | (b) "Department" means the Department on Aging of the | 15 | | State of Illinois. | 16 | | (c) "Director" means the Director of the Department. | 17 | | (c-5) "Disability" means a physical or mental disability, | 18 | | including, but not limited to, a developmental disability, an | 19 | | intellectual disability, a mental illness as defined under the | 20 | | Mental Health and Developmental Disabilities Code, or dementia | 21 | | as defined under the Alzheimer's Disease Assistance Act. | 22 | | (d) "Domestic living situation" means a residence where | 23 | | the eligible adult at the time of the report lives alone or | 24 | | with his or her family or a caregiver, or others, or other | 25 | | community-based unlicensed facility, but is not: | 26 | | (1) A licensed facility as defined in Section 1-113 of |
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| 1 | | the Nursing Home Care Act; | 2 | | (1.5) A facility licensed under the ID/DD Community | 3 | | Care Act; | 4 | | (1.6) A facility licensed under the MC/DD Act; | 5 | | (1.7) A facility licensed under the Specialized Mental | 6 | | Health Rehabilitation Act of 2013; | 7 | | (2) A "life care facility" as defined in the Life Care | 8 | | Facilities Act; | 9 | | (3) A home, institution, or other place operated by | 10 | | the federal government or agency thereof or by the State | 11 | | of Illinois; | 12 | | (4) A hospital, sanitarium, or other institution, the | 13 | | principal activity or business of which is the diagnosis, | 14 | | care, and treatment of human illness through the | 15 | | maintenance and operation of organized facilities | 16 | | therefor, which is required to be licensed under the | 17 | | Hospital Licensing Act; | 18 | | (5) A "community living facility" as defined in the | 19 | | Community Living Facilities Licensing Act; | 20 | | (6) (Blank); | 21 | | (7) A "community-integrated living arrangement" as | 22 | | defined in the Community-Integrated Living Arrangements | 23 | | Licensure and Certification Act or a "community | 24 | | residential alternative" as licensed under that Act; | 25 | | (8) An assisted living or shared housing establishment | 26 | | as defined in the Assisted Living and Shared Housing Act; |
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| 1 | | or | 2 | | (9) A supportive living facility as described in | 3 | | Section 5-5.01a of the Illinois Public Aid Code. | 4 | | (e) "Eligible adult" means either an adult with | 5 | | disabilities aged 18 through 59 or a person aged 60 or older | 6 | | who resides in a domestic living situation and is, or is | 7 | | alleged to be, abused, abandoned, neglected, or financially | 8 | | exploited by another individual or who neglects himself or | 9 | | herself. "Eligible adult" also includes an adult who resides | 10 | | in any of the facilities that are excluded from the definition | 11 | | of "domestic living situation" under paragraphs (1) through | 12 | | (9) of subsection (d), if either: (i) the alleged abuse, | 13 | | abandonment, or neglect occurs outside of the facility and not | 14 | | under facility supervision and the alleged abuser is a family | 15 | | member, caregiver, or another person who has a continuing | 16 | | relationship with the adult; or (ii) the alleged financial | 17 | | exploitation is perpetrated by a family member, caregiver, or | 18 | | another person who has a continuing relationship with the | 19 | | adult, but who is not an employee of the facility where the | 20 | | adult resides. | 21 | | (f) "Emergency" means a situation in which an eligible | 22 | | adult is living in conditions presenting a risk of death or | 23 | | physical, mental or sexual injury and the provider agency has | 24 | | reason to believe the eligible adult is unable to consent to | 25 | | services which would alleviate that risk. | 26 | | (f-1) "Financial exploitation" means the use of an |
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| 1 | | eligible adult's resources by another to the disadvantage of | 2 | | that adult or the profit or advantage of a person other than | 3 | | that adult. | 4 | | (f-3) "Investment advisor" means any person required to | 5 | | register as an investment adviser or investment adviser | 6 | | representative under Section 8 of the Illinois Securities Law | 7 | | of 1953, which for purposes of this Act excludes any bank, | 8 | | trust company, savings bank, or credit union, or their | 9 | | respective employees. | 10 | | (f-5) "Mandated reporter" means any of the following | 11 | | persons while engaged in carrying out their professional | 12 | | duties: | 13 | | (1) a professional or professional's delegate while | 14 | | engaged in: (i) social services, (ii) law enforcement, | 15 | | (iii) education, (iv) the care of an eligible adult or | 16 | | eligible adults, or (v) any of the occupations required to | 17 | | be licensed under the Behavior Analyst Licensing Act, the | 18 | | Clinical Psychologist Licensing Act, the Clinical Social | 19 | | Work and Social Work Practice Act, the Illinois Dental | 20 | | Practice Act, the Dietitian Nutritionist Practice Act, the | 21 | | Marriage and Family Therapy Licensing Act, the Medical | 22 | | Practice Act of 1987, the Naprapathic Practice Act, the | 23 | | Nurse Practice Act, the Nursing Home Administrators | 24 | | Licensing and Disciplinary Act, the Illinois Occupational | 25 | | Therapy Practice Act, the Illinois Optometric Practice Act | 26 | | of 1987, the Pharmacy Practice Act, the Illinois Physical |
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| 1 | | Therapy Act, the Physician Assistant Practice Act of 1987, | 2 | | the Podiatric Medical Practice Act of 1987, the | 3 | | Respiratory Care Practice Act, the Professional Counselor | 4 | | and Clinical Professional Counselor Licensing and Practice | 5 | | Act, the Illinois Speech-Language Pathology and Audiology | 6 | | Practice Act, the Veterinary Medicine and Surgery Practice | 7 | | Act of 2004, and the Illinois Public Accounting Act; | 8 | | (1.5) an employee of an entity providing developmental | 9 | | disabilities services or service coordination funded by | 10 | | the Department of Human Services; | 11 | | (2) an employee of a vocational rehabilitation | 12 | | facility prescribed or supervised by the Department of | 13 | | Human Services; | 14 | | (3) an administrator, employee, or person providing | 15 | | services in or through an unlicensed community based | 16 | | facility; | 17 | | (4) any religious practitioner who provides treatment | 18 | | by prayer or spiritual means alone in accordance with the | 19 | | tenets and practices of a recognized church or religious | 20 | | denomination, except as to information received in any | 21 | | confession or sacred communication enjoined by the | 22 | | discipline of the religious denomination to be held | 23 | | confidential; | 24 | | (5) field personnel of the Department of Healthcare | 25 | | and Family Services, Department of Public Health, and | 26 | | Department of Human Services, and any county or municipal |
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| 1 | | health department; | 2 | | (6) personnel of the Department of Human Services, the | 3 | | Guardianship and Advocacy Commission, the State Fire | 4 | | Marshal, local fire departments, the Department on Aging | 5 | | and its subsidiary Area Agencies on Aging and provider | 6 | | agencies, except the State Long Term Care Ombudsman and | 7 | | any of his or her representatives or volunteers where | 8 | | prohibited from making such a report pursuant to 45 CFR | 9 | | 1324.11(e)(3)(iv); | 10 | | (7) any employee of the State of Illinois not | 11 | | otherwise specified herein who is involved in providing | 12 | | services to eligible adults, including professionals | 13 | | providing medical or rehabilitation services and all other | 14 | | persons having direct contact with eligible adults; | 15 | | (8) a person who performs the duties of a coroner or | 16 | | medical examiner; | 17 | | (9) a person who performs the duties of a paramedic or | 18 | | an emergency medical technician; or | 19 | | (10) a person who performs the duties of an investment | 20 | | advisor ; . | 21 | | (11) a person who performs the duties of a | 22 | | broker-advisor; or | 23 | | (12) the manager of a financial institution. | 24 | | (g) "Neglect" means another individual's failure to | 25 | | provide an eligible adult with or willful withholding from an | 26 | | eligible adult the necessities of life including, but not |
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| 1 | | limited to, food, clothing, shelter or health care. This | 2 | | subsection does not create any new affirmative duty to provide | 3 | | support to eligible adults. Nothing in this Act shall be | 4 | | construed to mean that an eligible adult is a victim of neglect | 5 | | because of health care services provided or not provided by | 6 | | licensed health care professionals. | 7 | | (h) "Provider agency" means any public or nonprofit agency | 8 | | in a planning and service area that is selected by the | 9 | | Department or appointed by the regional administrative agency | 10 | | with prior approval by the Department on Aging to receive and | 11 | | assess reports of alleged or suspected abuse, abandonment, | 12 | | neglect, or financial exploitation. A provider agency is also | 13 | | referenced as a "designated agency" in this Act. | 14 | | (i) "Regional administrative agency" means any public or | 15 | | nonprofit agency in a planning and service area that provides | 16 | | regional oversight and performs functions as set forth in | 17 | | subsection (b) of Section 3 of this Act. The Department shall | 18 | | designate an Area Agency on Aging as the regional | 19 | | administrative agency or, in the event the Area Agency on | 20 | | Aging in that planning and service area is deemed by the | 21 | | Department to be unwilling or unable to provide those | 22 | | functions, the Department may serve as the regional | 23 | | administrative agency or designate another qualified entity to | 24 | | serve as the regional administrative agency; any such | 25 | | designation shall be subject to terms set forth by the | 26 | | Department. |
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| 1 | | (i-5) "Self-neglect" means a condition that is the result | 2 | | of an eligible adult's inability, due to physical or mental | 3 | | impairments, or both, or a diminished capacity, to perform | 4 | | essential self-care tasks that substantially threaten his or | 5 | | her own health, including: providing essential food, clothing, | 6 | | shelter, and health care; and obtaining goods and services | 7 | | necessary to maintain physical health, mental health, | 8 | | emotional well-being, and general safety. The term includes | 9 | | compulsive hoarding, which is characterized by the acquisition | 10 | | and retention of large quantities of items and materials that | 11 | | produce an extensively cluttered living space, which | 12 | | significantly impairs the performance of essential self-care | 13 | | tasks or otherwise substantially threatens life or safety. | 14 | | (j) "Substantiated case" means a reported case of alleged | 15 | | or suspected abuse, abandonment, neglect, financial | 16 | | exploitation, or self-neglect in which a provider agency, | 17 | | after assessment, determines that there is reason to believe | 18 | | abuse, abandonment, neglect, or financial exploitation has | 19 | | occurred. | 20 | | (k) "Verified" means a determination that there is "clear | 21 | | and convincing evidence" that the specific injury or harm | 22 | | alleged was the result of abuse, abandonment, neglect, or | 23 | | financial exploitation. | 24 | | (Source: P.A. 102-244, eff. 1-1-22; 102-953, eff. 5-27-22; | 25 | | 103-329, eff. 1-1-24 .) |
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| 1 | | (320 ILCS 20/2.5 new) | 2 | | Sec. 2.5. Financial exploitation. | 3 | | (a) As used in this Section, unless the context requires | 4 | | otherwise: | 5 | | "Financial institution" means any of the following: | 6 | | (1) A depository institution, as defined in Section | 7 | | 3(c) of the Federal Deposit Insurance Act (12 U.S.C. | 8 | | 1813(c)). | 9 | | (2) An institution-affiliated party, as defined in | 10 | | Section 3(u) of the Federal Deposit Insurance Act (12 | 11 | | U.S.C. 1813(u)). | 12 | | (3) A federal credit union or state credit union, as | 13 | | defined in Section 101 of the Federal Credit Union Act (12 | 14 | | U.S.C. 1752), including, but not limited to, an | 15 | | institution-affiliated party of a credit union, as defined | 16 | | in Section 206(r) of the Federal Credit Union Act (12 | 17 | | U.S.C. 1786(r)). | 18 | | "Representative" means a person or entity that is either | 19 | | of the following: | 20 | | (1) A conservator, trustee, or other representative of | 21 | | the estate of an eligible adult. | 22 | | (2) An attorney-in-fact of an eligible adult who acts | 23 | | within the authority of the power of attorney. | 24 | | (b) Financial exploitation of an eligible adult occurs | 25 | | when a person or entity does any of the following: | 26 | | (1) Takes, secretes, appropriates, obtains, or retains |
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| 1 | | real or personal property of an eligible adult for a | 2 | | wrongful use or with intent to defraud, or both. | 3 | | (2) Assists in taking, secreting, appropriating, | 4 | | obtaining, or retaining real or personal property of an | 5 | | eligible adult for a wrongful use or with intent to | 6 | | defraud, or both. | 7 | | (3) Knowingly aids and abets in the taking, secreting, | 8 | | appropriating, obtaining, or retaining of real or personal | 9 | | property of an eligible adult for a wrongful use or with | 10 | | intent to defraud, or both. | 11 | | (4) Takes, secretes, appropriates, obtains, or | 12 | | retains, or assists in taking, secreting, appropriating, | 13 | | obtaining, or retaining, real or personal property of an | 14 | | eligible adult by undue influence. | 15 | | (c) A person or entity is deemed to have taken, secreted, | 16 | | appropriated, obtained, or retained property for a wrongful | 17 | | use or assisted in taking, secreting, appropriating, | 18 | | obtaining, or retaining property for a wrongful use, if, among | 19 | | other things, the person or entity takes, secretes, | 20 | | appropriates, obtains, or retains the property or assists in | 21 | | taking, secreting, appropriating, obtaining, or retaining the | 22 | | property and the person or entity knew or should have known | 23 | | that this conduct is likely to be harmful to the eligible | 24 | | adult. | 25 | | (d) A person or entity takes, secretes, appropriates, | 26 | | obtains, or retains real or personal property when an eligible |
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| 1 | | adult is deprived of any property right, including by means of | 2 | | an agreement, donative transfer, or testamentary bequest, | 3 | | regardless of whether the property is held directly or by a | 4 | | representative of an eligible adult. | 5 | | (e) Assisting in the financial exploitation of an eligible | 6 | | adult occurs when a person or entity does either of the | 7 | | following: | 8 | | (1) For a financial institution, the manager of a | 9 | | financial institution, a broker-dealer, or an investment | 10 | | advisor, executing a transaction with or processing a | 11 | | transaction on behalf of an eligible adult for which both | 12 | | of the following apply: | 13 | | (A) The eligible adult interacts with the manager | 14 | | of the financial institution or with the broker-dealer | 15 | | or investment advisor in the process of requesting, | 16 | | initiating, or completing the transaction. | 17 | | (B) The financial institution, the manager of the | 18 | | financial institution, the broker-dealer, or the | 19 | | investment advisor fails to act as a reasonable person | 20 | | or entity in a like position would, considering the | 21 | | surrounding facts and circumstances, including the | 22 | | transaction history of the eligible adult, whether the | 23 | | transaction is aligned with prevailing business | 24 | | practices, and whether the eligible adult exhibits | 25 | | multiple red flags, in executing the transaction with | 26 | | or processing the transaction on behalf of the |
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| 1 | | eligible adult. As used in this subparagraph, "red | 2 | | flags" refers to the behavioral and financial red | 3 | | flags enumerated in Elder Financial Exploitation | 4 | | Advisory in FinCEN Advisory FIN-2022-A002 by the | 5 | | United States Department of the Treasury. | 6 | | (2) For any other mandated reporter not listed in | 7 | | paragraph (1), failing to act as a reasonable person in a | 8 | | like position would, considering the surrounding facts and | 9 | | circumstances, including, but not limited to, any of the | 10 | | following: | 11 | | (A) The vulnerability of the eligible adult. | 12 | | (B) The extent to which the eligible adult relied | 13 | | on the mandated reporter to handle the eligible | 14 | | adult's finances or for financial advice or financial | 15 | | decisions. | 16 | | (C) Any information the eligible adult provided to | 17 | | the mandated reporter about the situation. | 18 | | (D) The mandated reporter's past interactions with | 19 | | the eligible adult and whether the eligible adult's | 20 | | behavior was markedly different than in the eligible | 21 | | adult's prior interactions with the mandated reporter. | 22 | | (E) Whether the mandated reporter has a fiduciary | 23 | | duty to the eligible adult. | 24 | | (F) Any instructions or information the mandated | 25 | | reporter has been given about the eligible adult's | 26 | | capacity or ability to make decisions. |
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| 1 | | (G) Any trainings the mandated reporter has taken | 2 | | or should have taken, or information the mandated | 3 | | reporter has received or should have received, on the | 4 | | subjects of elder abuse and financial exploitation. | 5 | | (f)(1) For purposes of paragraph (1) of subsection (e), a | 6 | | financial institution, the manager of a financial institution, | 7 | | a broker-dealer, or an investment advisor shall be deemed to | 8 | | have acted reasonably if the person or entity proves that, at | 9 | | the time that the transaction was requested, the person or | 10 | | entity gave the eligible adult an explanation and warning, | 11 | | verbally and in writing, regarding the person's or entity's | 12 | | knowledge of, or suspicion of, financial exploitation | 13 | | occurring with respect to that transaction, and if either of | 14 | | the following is met: | 15 | | (A) If the eligible adult has designated a trusted | 16 | | contact person to receive notification of any known or | 17 | | suspected financial exploitation, or there is a joint | 18 | | holder on the account for which the transaction is | 19 | | requested, the person or entity contacted the trusted | 20 | | contact person or joint account holder and obtained | 21 | | consent for the transaction. | 22 | | (B)(i) If the financial institution, manager of the | 23 | | financial institution, broker-dealer, or investment | 24 | | advisor was unable to communicate with and obtain the | 25 | | consent of a secondary authorized account holder or | 26 | | trusted contact person, or there was no joint account |
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| 1 | | holder or designated trusted contact person, the person or | 2 | | entity refused the transaction, or notified the | 3 | | appropriate provider agency and law enforcement and held | 4 | | the transaction for 15 business days or until the provider | 5 | | agency or law enforcement informed the person or entity | 6 | | that the transaction should be completed. If, at any time | 7 | | during the 15-day period, the eligible adult informs the | 8 | | person or entity that the eligible adult does not wish to | 9 | | complete the transaction, the person or entity does not | 10 | | act reasonably if they complete the transaction anyway. | 11 | | (ii) Notwithstanding any other law to the contrary, | 12 | | for the purposes of item (i), a financial institution, the | 13 | | manager of the financial institution, a broker-dealer, or | 14 | | an investment advisor is authorized to delay or refuse a | 15 | | requested transaction if the person or entity notified the | 16 | | provider agency and law enforcement. | 17 | | (2) For the purposes of paragraph (1) of subsection (e), a | 18 | | nonsupervisory employee of a financial institution may not be | 19 | | held personally liable in his or her individual capacity for | 20 | | violations of this Section. However, this Section does not | 21 | | affect the liability of the financial institution for its own | 22 | | acts or under the theory of respondeat superior. | 23 | | (g) Nothing in this Section shall in any way affect or | 24 | | contravene any other reporting requirements under this Act. | 25 | | (h) Nothing in this Section shall apply to criminal | 26 | | prosecutions of financial exploitation of an elderly person or |
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| 1 | | a person with a disability. | 2 | | (i) Nothing in this Section shall be construed to prevent | 3 | | or significantly interfere with any financial institution's | 4 | | exercise of its powers under federal law. | 5 | | (j) If any provision of this Section or its application to | 6 | | any person or circumstance is held invalid, the invalidity of | 7 | | that provision or application does not affect other provisions | 8 | | or applications of this Section that can be given effect | 9 | | without the invalid provision or application. ". |
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