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90_SB1835
SEE INDEX
Amends the Elder Abuse and Neglect Act. Adds specific
examples to the definition of abuse, includes financial
exploitation as an abusive behavior, identifies certain
persons as mandated reporters of abuse, neglect, or
exploitation of eligible adults, and expands the Department
on Aging's responsibilities to include promotion of awareness
of elder abuse issues, coordination of efforts with other
agencies, and other duties. Includes those not defined as
eligible for services under this Act as persons, reports of
abuse of whom, the Department shall respond to under this
Act. Makes other changes. Amends the Code of Criminal
Procedure. Creates a hearsay exception for out of court
statements made by an eligible adult, as defined in the Elder
Abuse and Neglect Act, regarding abuse, neglect, or
exploitation in the prosecution for a number of acts
perpetrated against an eligible adult. Amends the Code of
Civil Procedure to create a similar hearsay exception in all
civil cases. Amends the Probate Act of 1975 to exclude, in
addition to the Office of State Guardian, elder abuse
provider agencies from the requirement of paying guardian ad
litem fees, and to exclude the Office of State Guardian and
elder abuse provider agencies from the requirement of paying
legal fees, when the respondent is unable to pay and the
elder abuse provider agency is the petitioner.
LRB9009206SMdvA
LRB9009206SMdvA
1 AN ACT regarding elder abuse.
2 Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4 Section 5. The Elder Abuse and Neglect Act is amended by
5 changing Sections 2, 3, 4, 5, 7, 8, 9, and 11, and by adding
6 Sections 3.5, 4.5, and 13 as follows:
7 (320 ILCS 20/2) (from Ch. 23, par. 6602)
8 Sec. 2. Definitions. As used in this Act, unless the
9 context requires otherwise:
10 (a) "Abuse" means conduct that produces or could
11 reasonably be expected to produce physical pain or injury,
12 mental injury, or emotional distress to an eligible adult,
13 including, but not limited to, the following:
14 (1) hitting, slapping, kicking, punching, biting,
15 or corporal punishment of an eligible adult;
16 (2) use of oral, written, or gestured language
17 toward an eligible adult in a manner that would be
18 considered by a reasonable person to be disparaging,
19 derogatory, humiliating, harassing, or threatening;
20 (3) use of any aversive or deprivation procedure,
21 unreasonable confinement, or involuntary seclusion,
22 including the forced separation of the eligible adult
23 from other persons against the eligible adult's will; and
24 (4) any sexual conduct with or penetration of an
25 eligible adult:
26 (A) against the eligible adult's will,
27 (B) by force or threat of force, or,
28 (C) where an eligible adult is unable to
29 consent to such conduct causing any physical, mental
30 or sexual injury to an eligible adult, including
31 exploitation of such adult's financial resources.
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1 Nothing in this Act shall be construed to mean that an
2 eligible adult is a victim of abuse or neglect for the sole
3 reason that he or she is being furnished with or relies upon
4 treatment by spiritual means through prayer alone, in
5 accordance with the tenets and practices of a recognized
6 church or religious denomination.
7 (a-5) "Abuser" means a person who abuses, neglects, or
8 financially exploits an eligible adult, or is alleged to have
9 abused, neglected, or financially exploited an eligible
10 adult.
11 (a-7) "Caregiver" means a person who, as a result of a
12 family relationship, or voluntarily, has assumed
13 responsibility for all or a portion of the care of an
14 eligible adult who needs assistance with activities of daily
15 living.
16 (b) "Department" means the Department on Aging of the
17 State of Illinois.
18 (c) "Director" means the Director of the Department.
19 (d) "Domestic living situation" means a residence where
20 the eligible adult lives alone or with his or her family or a
21 caretaker, or others, but is not:
22 (1) A licensed facility as defined in Section
23 1-113 of the Nursing Home Care Act;
24 (2) A "life care facility" as defined in the Life
25 Care Facilities Act;
26 (3) A home, institution, or other place operated by
27 the federal government or agency thereof or by the State
28 of Illinois;
29 (4) A hospital, sanitarium, or other institution,
30 the principal activity or business of which is the
31 diagnosis, care, and treatment of human illness through
32 the maintenance and operation of organized facilities
33 therefor, which is required to be licensed under the
34 Hospital Licensing Act;
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1 (5) A "community living facility" as defined in the
2 Community Living Facilities Licensing Act;
3 (6) A "community residential alternative" as
4 defined in the Community Residential Alternatives
5 Licensing Act; and
6 (7) A "community-integrated living arrangement" as
7 defined in the Community-Integrated Living Arrangements
8 Licensure and Certification Act.
9 (e) "Eligible adult" means a person 60 years of age or
10 older who resides in a domestic setting and is, or is alleged
11 to be, abused, or neglected, or exploited by another
12 individual.
13 (f) "Emergency" means a situation in which an eligible
14 adult is living in conditions presenting a risk of death or
15 physical, mental or sexual injury and the provider agency has
16 reason to believe the eligible adult is unable to consent to
17 services which would alleviate that risk.
18 (f-5) "Financial exploitation" means conduct wherein a
19 person, in the absence of legal authority:
20 (1) willfully uses, withholds or disposes of funds
21 or property of an eligible adult;
22 (2) obtains for himself or another the performance
23 of services by a third person for the wrongful profit or
24 advantage of himself or another to the detriment of the
25 eligible adult;
26 (3) acquires possession or control of, or an
27 interest in, funds or property of an eligible adult
28 through the use of undue influence, harassment, duress,
29 deception, or fraud;
30 (4) forces, compels, coerces, or entices an
31 eligible adult against the eligible adult's will to
32 perform services for the profit or advantage of another;
33 or
34 (5) in a breach of fiduciary obligation recognized
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1 elsewhere in law, engages in unauthorized expenditure of
2 funds to the detriment of the eligible adult, or fails to
3 use the eligible adult's resources to provide necessary
4 food, clothing, shelter, health care, or supervision to
5 the detriment or likely detriment of the eligible adult.
6 (f-7) "Mandated reporter" or "reporter" means:
7 (1) a professional or professional's delegate while
8 engaged in: (i) social services, (ii) law enforcement,
9 (iii) education, (iv) the care of an eligible adult or
10 eligible adults, or (v) any of the occupations required
11 to be licensed under the Clinical Psychologist Licensing
12 Act, the Clinical Social Work and Social Work Practice
13 Act, the Illinois Dental Practice Act, the Dietetic and
14 Nutrition Services Practice Act, the Marriage and Family
15 Therapy Licensing Act, the Medical Practice Act of 1987,
16 the Naprapathic Practice Act, the Illinois Nursing Act of
17 1987, the Nursing Home Administrators Licensing and
18 Disciplinary Act, the Illinois Occupational Therapy
19 Practice Act, the Illinois Optometric Practice Act of
20 1987, the Pharmacy Practice Act of 1987, the Illinois
21 Physical Therapy Act, the Physician Assistant Practice
22 Act of 1987, the Podiatric Medical Practice Act of 1987,
23 the Professional Counselor and Clinical Professional
24 Counselor Licensing Act, the Illinois Speech-Language
25 Pathology and Audiology Practice Act, the Veterinary
26 Medicine and Surgery Practice Act of 1994, and the
27 Illinois Public Accounting Act;
28 (2) an employee of a vocational rehabilitation
29 facility prescribed or supervised by the Department of
30 Human Services;
31 (3) an administrator, employee, or person providing
32 services in or through an unlicensed community based
33 facility;
34 (4) a Christian Science Practitioner;
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1 (5) field personnel of the Department of Human
2 Services, and any county or municipal health department;
3 (6) personnel of the Department of Human Services,
4 the Guardianship and Advocacy Commission, the State Fire
5 Marshal, local fire departments, the Department on Aging
6 and its subsidiary Area Agencies on Aging and provider
7 agencies, and the Office of State Long Term Care
8 Ombudsman, while engaged in providing services to
9 eligible adults;
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
14 other persons having direct contact with eligible adults.
15 (8) any employee of a "financial institution" as
16 defined in Section 1 of the Consumer Deposit Account Act
17 while acting within the scope of his or her employment;
18 (9) any person engaged in the practice of law in
19 this State;
20 (10) any person acting as a dealer, salesperson, or
21 investment adviser as those terms are defined in the
22 Illinois Securities Law of 1953; or
23 (11) a person who performs the duties of a coroner
24 or medical examiner.
25 (g) "Neglect" means:
26 (1) the failure or omission by a caregiver to
27 supply an eligible adult with care or services, including
28 but not limited to, food, clothing, shelter, health care,
29 or supervision that is reasonable and necessary to obtain
30 or maintain the eligible adult's physical or mental
31 health or safety, considering the physical and mental
32 capacity or dysfunction of the eligible adult, or
33 (2) the abandonment of an eligible adult by a
34 caregiver.
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1 Nothing in this Act shall require a family member or
2 another person to assume responsibilities not otherwise
3 required by law another individual's failure to provide an
4 eligible adult with or willful withholding from an eligible
5 adult the necessities of life including, but not limited to,
6 food, clothing, shelter or medical care. This subsection does
7 not create any new affirmative duty to provide support to
8 eligible adults.
9 (h) "Provider agency" means any public or nonprofit
10 agency in a planning and service area appointed by the
11 regional administrative agency with prior approval by the
12 Department on Aging to receive and assess reports of alleged
13 or suspected abuse, or neglect, or exploitation.
14 (i) "Regional administrative agency" means any public or
15 nonprofit agency in a planning and service area so designated
16 by the Department, provided that the designated Area Agency
17 on Aging shall be designated the regional administrative
18 agency if it so requests. The Department shall assume the
19 functions of the regional administrative agency for any
20 planning and service area where another agency is not so
21 designated.
22 (j) "Substantiated case" means a reported case of
23 alleged or suspected abuse, or neglect, or exploitation in
24 which a provider agency, after assessment, determines that
25 there is reason to believe abuse, or neglect, or exploitation
26 has occurred.
27 (Source: P.A. 86-820; 87-264.)
28 (320 ILCS 20/3) (from Ch. 23, par. 6603)
29 Sec. 3. Responsibilities.
30 (a) The Department shall establish, design and manage a
31 program of response and services for persons 60 years of age
32 and older who have been, or are alleged to be, victims of
33 elder abuse, or neglect, or exploitation. The Department
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1 shall contract with or fund or, contract with and fund,
2 regional administrative agencies, or provider agencies, or
3 both, for the provision of those functions, and, contingent
4 on adequate funding, with attorneys or legal services
5 provider agencies for the provision of legal assistance
6 services pursuant to this Act.
7 (b) Each regional administrative agency shall designate
8 provider agencies within its planning and service area with
9 prior approval by the Department on Aging, monitor the use of
10 services, provide technical assistance to the provider
11 agencies and be involved in program development activities.
12 (c) Provider agencies shall assist, to the extent
13 possible, eligible adults who need agency services to allow
14 them to continue to function independently. Such assistance
15 shall include but not be limited to receiving reports of
16 alleged or suspected abuse, or neglect, or exploitation,
17 conducting face-to-face assessments of such reported cases,
18 determination of substantiated cases, referral of
19 substantiated cases for necessary support services, referral
20 of criminal conduct to law enforcement in accordance with
21 Department guidelines, and provision of case work and
22 follow-up services on substantiated cases.
23 (Source: P.A. 85-1184.)
24 (320 ILCS 20/3.5 new)
25 Sec. 3.5. Other Responsibilities. The Department shall
26 also be responsible for the following activities, contingent
27 upon adequate funding:
28 (a) promotion of a wide range of endeavors for the
29 purpose of preventing elder abuse, neglect, and exploitation
30 in both domestic and institutional settings, including, but
31 not limited to, promotion of public and professional
32 education to increase awareness of elder abuse, neglect, and
33 exploitation, to increase reports, and to improve response by
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1 various legal, social, and health systems;
2 (b) coordination of efforts with other agencies,
3 councils, and like entities, to include but not be limited
4 to, the Office of the Attorney General, the State Police, the
5 Law Enforcement Training and Standards Board, the State
6 Triad, the Criminal Justice Information Authority, the
7 Departments of Public Health, Public Aid, and Human Services,
8 the Family Violence Coordinating Council, the Violence
9 Prevention Authority, and other entities which may impact
10 awareness of, and response to, elder abuse, neglect, and
11 exploitation;
12 (c) collection and analysis of data;
13 (d) monitoring of the performance of regional
14 administrative agencies and elder abuse provider agencies;
15 and
16 (e) promotion of prevention activities.
17 (320 ILCS 20/4) (from Ch. 23, par. 6604)
18 Sec. 4. Reports of abuse or neglect.
19 (a) Any person who suspects the wishing to report a case
20 of alleged or suspected abuse, or neglect, or exploitation of
21 an eligible adult may make such a report this suspicion to an
22 agency designated to receive such reports under this Act or
23 to the Department.
24 (a-5) If any mandated reporter has reason to believe
25 that an eligible adult, who because of dysfunction is unable
26 to seek assistance for himself or herself, has, within the
27 previous 12 months, been subjected to abuse, neglect, or
28 exploitation, the mandated reporter shall, within 24 hours
29 after developing such belief, report this suspicion to an
30 agency designated to receive such reports under this Act or
31 to the Department.
32 (a-7) A person making a report under this Act in the
33 belief that it is in the alleged victim's best interest shall
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1 be immune from criminal or civil liability or professional
2 disciplinary action on account of making the report,
3 notwithstanding any requirements concerning the
4 confidentiality of information with respect to such eligible
5 adult patient which might otherwise be applicable.
6 (a-9) Law enforcement officers shall continue to report
7 incidents of alleged abuse pursuant to the Illinois Domestic
8 Violence Act of 1986, notwithstanding any requirements under
9 this Act.
10 (b) Any person, institution or agency making a report
11 under this Act in good faith, or taking photographs or x-rays
12 as a result of an authorized assessment, shall have immunity
13 from any civil, criminal or other liability in any civil,
14 criminal or other proceeding brought in consequence of making
15 such report or assessment or on account of submitting or
16 otherwise disclosing such photographs or x-rays to any agency
17 designated to receive reports of alleged or suspected abuse
18 or neglect. Any person, institution or agency authorized by
19 the Department to provide assessment, intervention, or
20 administrative services under this Act shall, in the good
21 faith performance of those services, have immunity from any
22 civil, criminal or other liability in any civil, criminal, or
23 other proceeding brought as a consequence of the performance
24 of those services.
25 (c) The identity of a person making a report of alleged
26 or suspected abuse or neglect under this Act may be disclosed
27 by the Department or other agency provided for in this Act
28 only with such person's written consent or by court order or,
29 without consent or a court order, to a law enforcement agency
30 in connection with a criminal investigation.
31 (d) The Department shall by rule establish a system for
32 filing and compiling reports made under this Act.
33 (Source: P.A. 87-264; 87-435.)
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1 (320 ILCS 20/4.5 new)
2 Sec. 4.5. Reports regarding those not in domestic living
3 situations. If a person 60 years of age or older resides in
4 one of the facilities described in subdivision (d)(1) through
5 (d)(7) of Section 2, or in a board and care, or other
6 community based unlicensed facility, and if there is a report
7 of elder abuse, neglect or exploitation of the resident by a
8 family member, friend, neighbor, or paid person who is
9 employed by, or affiliated in any way with, an unlicensed
10 community based facility, the Department shall respond to the
11 report as if the person were an eligible adult as defined in
12 this Act.
13 (320 ILCS 20/5) (from Ch. 23, par. 6605)
14 Sec. 5. Procedure.
15 (a) A provider agency designated to receive reports of
16 alleged or suspected abuse, or neglect, or exploitation under
17 this Act shall, upon receiving such a report, conduct a
18 face-to-face assessment with respect to such report. The
19 assessment shall include, but not be limited to, a visit to
20 the residence of the eligible adult who is the subject of the
21 report and may include interviews or consultations with
22 service agencies or individuals who may have knowledge of the
23 eligible adult's circumstances. If, after the assessment,
24 the provider agency determines that the case is substantiated
25 it shall develop a service care plan for the eligible adult.
26 In developing the plan, the provider agency may consult with
27 any other appropriate provider of services, and such
28 providers shall be immune from civil or criminal liability on
29 account of such acts. The plan shall include alternative
30 suggested or recommended services which are appropriate to
31 the needs of the eligible adult and which involve the least
32 restriction of the eligible adult's activities commensurate
33 with his or her needs. Only those services to which consent
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1 is provided in accordance with Section 9 of this Act shall be
2 provided, contingent upon the availability of such services.
3 (b) A provider agency shall refer evidence of crimes
4 against an eligible adult to the appropriate law enforcement
5 agency according to Department policies. A referral to law
6 enforcement may be made at intake or any time during the
7 case. Where a provider agency has reason to believe the
8 death of an eligible adult may be the result of abuse or
9 neglect, the agency shall immediately report the matter to
10 the coroner or medical examiner and shall cooperate fully
11 with any subsequent investigation.
12 (Source: P.A. 85-1184.)
13 (320 ILCS 20/7) (from Ch. 23, par. 6607)
14 Sec. 7. Review. All services provided to an eligible
15 adult shall be reviewed by the provider agency on at least a
16 quarterly basis for up to not less than one year to determine
17 whether the service care plan should be continued or
18 modified.
19 (Source: P.A. 85-1184.)
20 (320 ILCS 20/8) (from Ch. 23, par. 6608)
21 Sec. 8. Access to records. All records concerning
22 reports of elder abuse, and neglect, and exploitation and all
23 records generated as a result of such reports shall be
24 confidential and shall not be disclosed except as
25 specifically authorized by this Act or other applicable law.
26 Access to such records, but not, except for the purposes of a
27 criminal investigation or for case monitoring or review,
28 access to the identity of the person or persons making a
29 report of alleged abuse, or neglect, or exploitation as
30 contained in such records, shall be allowed to the following
31 persons and for the following persons:
32 (1) (a) Department staff, provider agency staff, other
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1 aging network staff, and regional administrative agency staff
2 in the furtherance of their responsibilities under this Act;
3 (2) (b) A law enforcement agency investigating known or
4 suspected elder abuse, or neglect or exploitation. Where a
5 provider agency has reason to believe that the death of an
6 eligible adult may be the result of abuse or neglect, the
7 agency shall immediately provide the appropriate law
8 enforcement agency with all records pertaining to the
9 eligible adult;
10 (3) (c) A physician who has before him or her or who is
11 involved in the treatment of an eligible adult whom he or she
12 reasonably suspects may be abused, or neglected, or exploited
13 or who has been referred to the Elder Abuse and Neglect
14 Program;
15 (4) (d) An eligible adult reported to be abused, or
16 neglected, or exploited, or such adult's guardian unless such
17 guardian is the alleged abuser;
18 (5) (e) A court or a guardian ad litem, upon its or his
19 or her finding that access to such records may be necessary
20 for the determination of an issue before the such court.
21 However, such access shall be limited to an in camera
22 inspection of the records, unless the court determines that
23 disclosure of the information contained therein is necessary
24 for the resolution of an issue then pending before it;
25 (6) (f) A grand jury, upon its determination that access
26 to such records is necessary in the conduct of its official
27 business;
28 (7) (g) Any person authorized by the Director, in
29 writing, for audit or bona fide research purposes;
30 (8) (h) A coroner or medical examiner who has reason to
31 believe that an eligible adult has died as the result of
32 abuse, or neglect, or exploitation. The provider agency
33 shall immediately provide the coroner or medical examiner
34 with all records pertaining to the eligible adult; and
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1 (9) (i) Department of Professional Regulation staff and
2 members of the Social Work Examining and Disciplinary Board
3 in the course of investigating alleged violations of the
4 Clinical Social Work and Social Work Practice Act by provider
5 agency staff.
6 (Source: P.A. 89-387, eff. 8-20-95.)
7 (320 ILCS 20/9) (from Ch. 23, par. 6609)
8 Sec. 9. Authority to consent to services. (a) If an
9 eligible adult consents to services being provided according
10 to the service care plan, such services shall be arranged to
11 meet the adult's needs, based upon the availability of
12 resources to provide such services. If an adult withdraws
13 his or her consent or refuses to accept such services, the
14 services shall not be provided.
15 (b) If it reasonably appears to the Department or other
16 agency designated under this Act that a person is an eligible
17 adult and lacks the capacity to consent to necessary
18 services, including an assessment, the Department or other
19 agency may seek the appointment of a temporary guardian as
20 provided in Article XIa of the Probate Act of 1975 for the
21 purpose of consenting to such services.
22 (c) A guardian of the person of an eligible adult may
23 consent to services being provided according to the service
24 care plan. If a guardian withdraws his or her consent or
25 refuses to allow services to be provided to the eligible
26 adult, the Department, an agency designated under this Act,
27 or the office of the Attorney General may request a court
28 order an order of protection under the Illinois Domestic
29 Violence Act of 1986 seeking appropriate remedies, and may in
30 addition request removal of the guardian and appointment of a
31 successor guardian.
32 (d) If an emergency exists and the Department or other
33 agency designated under this Act reasonably believes that a
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1 person is an eligible adult and lacks the capacity to consent
2 to necessary services, the Department or other agency may
3 request an ex parte order from the circuit court of the
4 county in which the petitioner or respondent resides or in
5 which the alleged abuse, or neglect, or exploitation
6 occurred, authorizing an assessment of a report of alleged or
7 suspected abuse, or neglect, or exploitation or and the
8 provision of necessary services, or both, including relief
9 available under the Illinois Domestic Violence Act of 1986.
10 Petitions filed under this subsection shall be treated as
11 expedited proceedings.
12 (e) Within 15 days after the entry of the ex parte
13 emergency order, the order shall expire, or, if the need for
14 assessment or services continues, the provider agency shall
15 petition for the appointment of a guardian as provided in
16 Article XIa of the Probate Act of 1975 for the purpose of
17 consenting to such assessment or services or to protect the
18 eligible adult from further harm.
19 (Source: P.A. 85-1184.)
20 (320 ILCS 20/11) (from Ch. 23, par. 6611)
21 Sec. 11. Annual Reports. The Department shall file with
22 the Governor and the General Assembly, within 270 90 days
23 after the end of each fiscal year, a report concerning its
24 implementation of this Act during such fiscal year, together
25 with any recommendations for future implementation.
26 (Source: P.A. 85-1184.)
27 (320 ILCS 20/13 new)
28 Sec. 13. Access.
29 (a) The designated provider agencies shall have access
30 to eligible adults who have been reported or found to be
31 victims of abuse, neglect, or exploitation in order to assess
32 the validity of the report, assess other needs of the
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1 eligible adult, and provide services in accordance with this
2 Act.
3 (b) Where access to an eligible adult is denied, the
4 Office of the Attorney General, the Department, or the
5 provider agency may petition the court for an order to
6 require appropriate access where:
7 (1) a caregiver or third party has interfered with
8 the assessment or service plan, or
9 (2) the agency has reason to believe that the
10 eligible adult is denying access because of coercion,
11 extortion, or justifiable fear of future abuse, neglect,
12 or exploitation.
13 (c) The petition for an order requiring appropriate
14 access shall be afforded an expedited hearing in the circuit
15 court.
16 (d) If the elder abuse provider agency has substantiated
17 financial exploitation against an eligible adult, and has
18 documented a reasonable belief that the eligible adult will
19 be irreparably harmed as a result of the financial
20 exploitation, the Office of the Attorney General, the
21 Department, or the provider agency may petition for an order
22 freezing the assets of the eligible adult. The petition shall
23 be filed in the county or counties in which the assets are
24 located. The court's order shall prohibit the sale, gifting,
25 transfer, or wasting of the assets of the eligible adult,
26 both real and personal, owned by, or vested in, the eligible
27 adult, without the express permission of the court. The
28 petition to freeze the assets of the eligible adult shall be
29 afforded an expedited hearing in the circuit court.
30 (320 ILCS 20/12 rep.)
31 Section 10. The Elder Abuse and Neglect Act is amended
32 by repealing Section 12.
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1 Section 15. The Code of Criminal Procedure of 1963 is
2 amended by adding Section 115-10.3 as follows:
3 (725 ILCS 5/115-10.3 new)
4 Sec. 115-10.3. Hearsay exception regarding elder adults.
5 (a) In a prosecution for abuse, neglect, or financial
6 exploitation perpetrated upon or against an eligible adult,
7 as defined in the Elder Abuse and Neglect Act, who at the
8 time the act was committed has been diagnosed by a physician
9 to suffer from (i) any form of dementia, developmental
10 disability, or other form of mental incapacity or (ii) any
11 physical infirmity which prevents the eligible adult's
12 appearance in court, including but not limited to
13 prosecutions for violations of Sections 10-1, 10-2, 10-3,
14 10-3.1, 10-4, 11-11, 12-1, 12-2, 12-3, 12-3.2, 12-4, 12-4.1,
15 12-4.2, 12-4.5, 12-4.6, 12-4.7, 12-5, 12-6, 12-7.3, 12-7.4,
16 12-11, 12-13, 12-14, 12-15, 12-16, 12-21, 16-1, 16-1.3, and
17 17-3 of the Criminal Code of 1961, the following evidence
18 shall be admitted as an exception to the hearsay rule:
19 (1) testimony by an eligible adult, of an out of
20 court statement made by the eligible adult, that he or
21 she complained of such act to another; and
22 (2) testimony of an out of court statement made by
23 the eligible adult, describing any complaint of such act
24 or matter or detail pertaining to any act which is an
25 element of an offense which is the subject of a
26 prosecution for abuse, neglect, or financial exploitation
27 perpetrated upon or against the eligible adult.
28 (b) Such testimony shall only be admitted if:
29 (1) The court finds in a hearing conducted outside
30 the presence of the jury that the time, content, and
31 circumstances of the statement provide sufficient
32 safeguards of reliability; and
33 (2) The eligible adult either:
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1 (A) testifies at the proceeding; or
2 (B) is unavailable as a witness and there is
3 corroborative evidence of the act which is the
4 subject of the statement.
5 (c) If a statement is admitted pursuant to this Section,
6 the court shall instruct the jury that it is for the jury to
7 determine the weight and credibility to be given the
8 statement and that, in making the determination, it shall
9 consider the condition of the eligible adult, the nature of
10 the statement, the circumstances under which the statement
11 was made, and any other relevant factor.
12 (d) The proponent of the statement shall give the
13 adverse party reasonable notice of his or her intention to
14 offer the statement and the particulars of the statement.
15 Section 20. The Code of Civil Procedure is amended by
16 adding Part 27 to Article VIII as follows:
17 (735 ILCS 5/Art. VIII, Part 27 heading new)
18 PART 27. ELDER ADULTS
19 (735 ILCS 5/8-2701 new)
20 Sec. 8-2701. Admissibility of evidence; out of court
21 statements; elder abuse.
22 (a) An out of court statement made by an eligible adult,
23 as defined in the Elder Abuse and Neglect Act, who has been
24 diagnosed by a physician to suffer from (i) any form of
25 dementia, developmental disability, or other form of mental
26 incapacity or (ii) any physical infirmity which prevents the
27 eligible adult's appearance in court, describing any act of
28 elder abuse, neglect, or exploitation, or testimony by an
29 eligible adult of an out of court statement made by the
30 eligible adult that he or she complained of such acts to
31 another, is admissible in any civil proceeding, if:
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1 (1) the court conducts a hearing outside the
2 presence of the jury and finds that the time, content,
3 and circumstances of the statement provide sufficient
4 safeguards of reliability; and
5 (2) the eligible adult either:
6 (A) testifies at the proceeding; or
7 (B) is unavailable as a witness and there is
8 corroborative evidence of the act which is the
9 subject of the statement.
10 (b) If a statement is admitted pursuant to this Section,
11 the court shall instruct the jury that it is for the jury to
12 determine the weight and credibility to be given to the
13 statement and that, in making its determination, it shall
14 consider the condition of the eligible adult, the nature of
15 the statement, the circumstances under which the statement
16 was made, and any other relevant factors.
17 (c) The proponent of the statement shall give the
18 adverse party reasonable notice of an intention to offer the
19 statement and the particulars of the statement.
20 Section 25. The Probate Act of 1975 is amended by
21 changing Section 11a-10 as follows:
22 (755 ILCS 5/11a-10) (from Ch. 110 1/2, par. 11a-10)
23 Sec. 11a-10. Procedures preliminary to hearing.)
24 (a) Upon the filing of a petition pursuant to Section
25 11a-8, the court shall set a date and place for hearing to
26 take place within 30 days. The court shall appoint a
27 guardian ad litem to report to the court concerning the
28 respondent's best interests consistent with the provisions of
29 this Section, except that the appointment of a guardian ad
30 litem shall not be required when the court determines that
31 such appointment is not necessary for the protection of the
32 respondent or a reasonably informed decision on the petition.
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1 If the guardian ad litem is not a licensed attorney, he or
2 she shall be qualified, by training or experience, to work
3 with or advocate for the developmentally disabled, mentally
4 ill, physically disabled, the elderly, or persons disabled
5 because of mental deterioration, depending on the type of
6 disability that is alleged in the petition. The court may
7 allow the guardian ad litem reasonable compensation. The
8 guardian ad litem may consult with a person who by training
9 or experience is qualified to work with persons with a
10 developmental disability, persons with mental illness, or
11 physically disabled persons, or persons disabled because of
12 mental deterioration, depending on the type of disability
13 that is alleged. The guardian ad litem shall personally
14 observe the respondent prior to the hearing and shall inform
15 him orally and in writing of the contents of the petition and
16 of his rights under Section 11a-11. The guardian ad litem
17 shall also attempt to elicit the respondent's position
18 concerning the adjudication of disability, the proposed
19 guardian, a proposed change in residential placement, changes
20 in care that might result from the guardianship, and other
21 areas of inquiry deemed appropriate by the court. At or
22 before the hearing, the guardian ad litem shall file a
23 written report detailing his or her observations of the
24 respondent, the responses of the respondent to any of the
25 inquires detailed in this Section, the opinion of the
26 guardian ad litem or other professionals with whom the
27 guardian ad litem consulted concerning the appropriateness of
28 guardianship, and any other material issue discovered by the
29 guardian ad litem. The guardian ad litem shall appear at the
30 hearing and testify as to any issues presented in his or her
31 report.
32 (b) The court (1) may appoint counsel for the
33 respondent, if the court finds that the interests of the
34 respondent will be best served by the appointment, and (2)
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1 shall appoint counsel upon respondent's request or if the
2 respondent takes a position adverse to that of the guardian
3 ad litem. The respondent shall be permitted to obtain the
4 appointment of counsel either at the hearing or by any
5 written or oral request communicated to the court prior to
6 the hearing. The summons shall inform the respondent of this
7 right to obtain appointed counsel. The court may allow
8 counsel for the respondent reasonable compensation.
9 (c) If the respondent is unable to pay the fee of the
10 guardian ad litem or appointed counsel, or both, the court
11 may enter an order for the petitioner to pay all such fees or
12 such amounts as the respondent or the respondent's estate may
13 be unable to pay. However, in cases where the Office of State
14 Guardian is the petitioner, consistent with Section 30 of the
15 Guardianship and Advocacy Act, or where an elder abuse
16 provider agency is the petitioner, pursuant to Section 9 of
17 the Elder Abuse and Neglect Act, no guardian ad litem or
18 legal fees shall be assessed against the Office of State
19 Guardian or the elder abuse provider agency.
20 (d) The hearing may be held at such convenient place as
21 the court directs, including at a facility in which the
22 respondent resides.
23 (e) Unless he is the petitioner, the respondent shall be
24 personally served with a copy of the petition and a summons
25 not less than 14 days before the hearing. The summons shall
26 be printed in large, bold type and shall include the
27 following notice:
28 NOTICE OF RIGHTS OF RESPONDENT
29 You have been named as a respondent in a guardianship
30 petition asking that you be declared a disabled person. If
31 the court grants the petition, a guardian will be appointed
32 for you. A copy of the guardianship petition is attached for
33 your convenience.
34 The date and time of the hearing are:
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1 The place where the hearing will occur is:
2 The Judge's name and phone number is:
3 If a guardian is appointed for you, the guardian may be
4 given the right to make all important personal decisions for
5 you, such as where you may live, what medical treatment you
6 may receive, what places you may visit, and who may visit
7 you. A guardian may also be given the right to control and
8 manage your money and other property, including your home, if
9 you own one. You may lose the right to make these decisions
10 for yourself.
11 You have the following legal rights:
12 (1) You have the right to be present at the court
13 hearing.
14 (2) You have the right to be represented by a
15 lawyer, either one that you retain, or one appointed by
16 the Judge.
17 (3) You have the right to ask for a jury of six
18 persons to hear your case.
19 (4) You have the right to present evidence to the
20 court and to confront and cross-examine witnesses.
21 (5) You have the right to ask the Judge to appoint
22 an independent expert to examine you and give an opinion
23 about your need for a guardian.
24 (6) You have the right to ask that the court
25 hearing be closed to the public.
26 (7) You have the right to tell the court whom you
27 prefer to have for your guardian.
28 You do not have to attend the court hearing if you do not
29 want to be there. If you do not attend, the Judge may
30 appoint a guardian if the Judge finds that a guardian would
31 be of benefit to you. The hearing will not be postponed or
32 canceled if you do not attend.
33 IT IS VERY IMPORTANT THAT YOU ATTEND THE HEARING IF YOU
34 DO NOT WANT A GUARDIAN OR IF YOU WANT SOMEONE OTHER THAN THE
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1 PERSON NAMED IN THE GUARDIANSHIP PETITION TO BE YOUR
2 GUARDIAN. IF YOU DO NOT WANT A GUARDIAN OF IF YOU HAVE ANY
3 OTHER PROBLEMS, YOU SHOULD CONTACT AN ATTORNEY OR COME TO
4 COURT AND TELL THE JUDGE.
5 Service of summons and the petition may be made by a
6 private person 18 years of age or over who is not a party to
7 the action.
8 (f) Notice of the time and place of the hearing shall be
9 given by the petitioner by mail or in person to those
10 persons, including the proposed guardian, whose names and
11 addresses appear in the petition and who do not waive notice,
12 not less than 14 days before the hearing.
13 (Source: P.A. 88-380; 89-396, eff. 8-20-95.)
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1 INDEX
2 Statutes amended in order of appearance
3 SEE INDEX
4 320 ILCS 20/2 from Ch. 23, par. 6602
5 320 ILCS 20/3 from Ch. 23, par. 6603
6 320 ILCS 20/3.5 new
7 320 ILCS 20/4 from Ch. 23, par. 6604
8 320 ILCS 20/4.5 new
9 320 ILCS 20/5 from Ch. 23, par. 6605
10 320 ILCS 20/7 from Ch. 23, par. 6607
11 320 ILCS 20/8 from Ch. 23, par. 6608
12 320 ILCS 20/9 from Ch. 23, par. 6609
13 320 ILCS 20/11 from Ch. 23, par. 6611
14 320 ILCS 20/13 new
15 320 ILCS 20/12 rep.
16 725 ILCS 5/115-10.3 new
17 735 ILCS 5/Art. VIII, Part 27 heading new
18 735 ILCS 5/8-2701 new
19 755 ILCS 5/11a-10 from Ch. 110 1/2, par. 11a-10