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90_SB1835eng 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 SB1835 Engrossed LRB9009206SMdvA 1 AN ACT regarding elder abuse, amending named Acts. 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, 4.1, 4.2, 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 causing any physical, mental or sexual 11 injury to an eligible adult, including exploitation of such 12 adult's financial resources. 13 Nothing in this Act shall be construed to mean that an 14 eligible adult is a victim of abuse or neglect for the sole 15 reason that he or she is being furnished with or relies upon 16 treatment by spiritual means through prayer alone, in 17 accordance with the tenets and practices of a recognized 18 church or religious denomination. 19 Nothing in this Act shall be construed to mean that an 20 eligible adult is a victim of abuse because of health care 21 services provided or not provided by health care 22 professionals. 23 (a-5) "Abuser" means a person who abuses, neglects, or 24 financially exploits an eligible adult. 25 (a-7) "Caregiver" means a person who either as a result 26 of a family relationship, voluntarily, or in exchange for 27 compensation has assumed responsibility for all or a portion 28 of the care of an eligible adult who needs assistance with 29 activities of daily living. 30 (b) "Department" means the Department on Aging of the 31 State of Illinois. SB1835 Engrossed -2- LRB9009206SMdvA 1 (c) "Director" means the Director of the Department. 2 (d) "Domestic living situation" means a residence where 3 the eligible adult lives alone or with his or her family or a 4 caretaker, or others, or a board and care home or other 5 community-based unlicensed facility, but is not: 6 (1) A licensed facility as defined in Section 7 1-113 of the Nursing Home Care Act; 8 (2) A "life care facility" as defined in the Life 9 Care Facilities Act; 10 (3) A home, institution, or other place operated by 11 the federal government or agency thereof or by the State 12 of Illinois; 13 (4) A hospital, sanitarium, or other institution, 14 the principal activity or business of which is the 15 diagnosis, care, and treatment of human illness through 16 the maintenance and operation of organized facilities 17 therefor, which is required to be licensed under the 18 Hospital Licensing Act; 19 (5) A "community living facility" as defined in the 20 Community Living Facilities Licensing Act; 21 (6) A "community residential alternative" as 22 defined in the Community Residential Alternatives 23 Licensing Act; and 24 (7) A "community-integrated living arrangement" as 25 defined in the Community-Integrated Living Arrangements 26 Licensure and Certification Act. 27 (e) "Eligible adult" means a person 60 years of age or 28 older who resides in a domestic setting and is, or is alleged 29 to be, abused,orneglected, or financially exploited by 30 another individual. 31 (f) "Emergency" means a situation in which an eligible 32 adult is living in conditions presenting a risk of death or 33 physical, mental or sexual injury and the provider agency has 34 reason to believe the eligible adult is unable to consent to SB1835 Engrossed -3- LRB9009206SMdvA 1 services which would alleviate that risk. 2 (f-5) "Mandated reporter" or "reporter" means any of the 3 following persons while engaged in carrying out their 4 professional duties: 5 (1) a professional or professional's delegate while 6 engaged in: (i) social services, (ii) law enforcement, 7 (iii) education, (iv) the care of an eligible adult or 8 eligible adults, or (v) any of the occupations required 9 to be licensed under the Clinical Psychologist Licensing 10 Act, the Clinical Social Work and Social Work Practice 11 Act, the Illinois Dental Practice Act, the Dietetic and 12 Nutrition Services Practice Act, the Marriage and Family 13 Therapy Licensing Act, the Medical Practice Act of 1987, 14 the Naprapathic Practice Act, the Illinois Nursing Act of 15 1987, the Nursing Home Administrators Licensing and 16 Disciplinary Act, the Illinois Occupational Therapy 17 Practice Act, the Illinois Optometric Practice Act of 18 1987, the Pharmacy Practice Act of 1987, the Illinois 19 Physical Therapy Act, the Physician Assistant Practice 20 Act of 1987, the Podiatric Medical Practice Act of 1987, 21 the Professional Counselor and Clinical Professional 22 Counselor Licensing Act, the Illinois Speech-Language 23 Pathology and Audiology Practice Act, the Veterinary 24 Medicine and Surgery Practice Act of 1994, and the 25 Illinois Public Accounting Act; 26 (2) an employee of a vocational rehabilitation 27 facility prescribed or supervised by the Department of 28 Human Services; 29 (3) an administrator, employee, or person providing 30 services in or through an unlicensed community based 31 facility; 32 (4) a Christian Science Practitioner; 33 (5) field personnel of the Department of Public 34 Aid, Department of Public Health, and Department of Human SB1835 Engrossed -4- LRB9009206SMdvA 1 Services, and any county or municipal health department; 2 (6) personnel of the Department of Human Services, 3 the 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, and the Office of State Long Term Care 7 Ombudsman; 8 (7) any employee of the State of Illinois not 9 otherwise specified herein who is involved in providing 10 services to eligible adults, including professionals 11 providing medical or rehabilitation services and all 12 other persons having direct contact with eligible adults; 13 (8) any employee of a "financial institution" as 14 defined in Section 1 of the Consumer Deposit Account Act; 15 (9) any person acting as a dealer, salesperson, or 16 investment adviser as those terms are defined in the 17 Illinois Securities Law of 1953; or 18 (10) a person who performs the duties of a coroner 19 or medical examiner. 20 (g) "Neglect" means another individual's failure to 21 provide an eligible adult with or willful withholding from an 22 eligible adult the necessities of life including, but not 23 limited to, food, clothing, shelter or medical care. This 24 subsection does not create any new affirmative duty to 25 provide support to eligible adults. Nothing in this Act 26 shall be construed to mean that an eligible adult is a victim 27 of neglect because of health care services provided or not 28 provided by health care professionals. 29 (h) "Provider agency" means any public or nonprofit 30 agency in a planning and service area appointed by the 31 regional administrative agency with prior approval by the 32 Department on Aging to receive and assess reports of alleged 33 or suspected abuse,orneglect, or financial exploitation. 34 (i) "Regional administrative agency" means any public or SB1835 Engrossed -5- LRB9009206SMdvA 1 nonprofit agency in a planning and service area so designated 2 by the Department, provided that the designated Area Agency 3 on Aging shall be designated the regional administrative 4 agency if it so requests. The Department shall assume the 5 functions of the regional administrative agency for any 6 planning and service area where another agency is not so 7 designated. 8 (j) "Substantiated case" means a reported case of 9 alleged or suspected abuse,orneglect, or financial 10 exploitation in which a provider agency, after assessment, 11 determines that there is reason to believe abuse,orneglect, 12 or financial exploitation has occurred. 13 (Source: P.A. 86-820; 87-264.) 14 (320 ILCS 20/3) (from Ch. 23, par. 6603) 15 Sec. 3. Responsibilities. 16 (a) The Department shall establish, design and manage a 17 program of response and services for persons 60 years of age 18 and older who have been, or are alleged to be, victims of 19elderabuse,orneglect, or financial exploitation. The 20 Department shall contract with or fund or, contract with and 21 fund, regional administrative agencies,orprovider agencies, 22 or both, for the provision of those functions, and, 23 contingent on adequate funding, with attorneys or legal 24 services provider agencies for the provision of legal 25 assistanceservicespursuant to this Act. 26 (b) Each regional administrative agency shall designate 27 provider agencies within its planning and service area with 28 prior approval by the Department on Aging, monitor the use of 29 services, provide technical assistance to the provider 30 agencies and be involved in program development activities. 31 (c) Provider agencies shall assist, to the extent 32 possible, eligible adults who need agency services to allow 33 them to continue to function independently. Such assistance SB1835 Engrossed -6- LRB9009206SMdvA 1 shall include but not be limited to receiving reports of 2 alleged or suspected abuse,orneglect, or financial 3 exploitation, conducting face-to-face assessments of such 4 reported cases, determination of substantiated cases, 5 referral of substantiated cases for necessary support 6 services, referral of criminal conduct to law enforcement in 7 accordance with Department guidelines, and provision of case 8 work and follow-up services on substantiated cases. 9 (Source: P.A. 85-1184.) 10 (320 ILCS 20/3.5 new) 11 Sec. 3.5. Other Responsibilities. The Department shall 12 also be responsible for the following activities, contingent 13 upon adequate funding: 14 (a) promotion of a wide range of endeavors for the 15 purpose of preventing elder abuse, neglect, and financial 16 exploitation in both domestic and institutional settings, 17 including, but not limited to, promotion of public and 18 professional education to increase awareness of elder abuse, 19 neglect, and financial exploitation, to increase reports, and 20 to improve response by various legal, social, and health 21 systems; 22 (b) coordination of efforts with other agencies, 23 councils, and like entities, to include but not be limited 24 to, the Office of the Attorney General, the State Police, the 25 Law Enforcement Training and Standards Board, the State 26 Triad, the Criminal Justice Information Authority, the 27 Departments of Public Health, Public Aid, and Human Services, 28 the Family Violence Coordinating Council, the Violence 29 Prevention Authority, and other entities which may impact 30 awareness of, and response to, elder abuse, neglect, and 31 financial exploitation; 32 (c) collection and analysis of data; 33 (d) monitoring of the performance of regional SB1835 Engrossed -7- LRB9009206SMdvA 1 administrative agencies and elder abuse provider agencies; 2 and 3 (e) promotion of prevention activities. 4 (320 ILCS 20/4) (from Ch. 23, par. 6604) 5 Sec. 4. Reports of abuse or neglect. 6 (a) Any person who suspects thewishing to report a case7of alleged or suspectedabuse,orneglect, or financial 8 exploitation of an eligible adult maymake such areport this 9 suspicion to an agency designated to receive such reports 10 under this Act or to the Department. 11 (a-5) If any mandated reporter has reason to believe 12 that an eligible adult, who because of dysfunction is unable 13 to seek assistance for himself or herself, has, within the 14 previous 12 months, been subjected to abuse, neglect, or 15 financial exploitation, the mandated reporter shall, within 16 24 hours after developing such belief, report this suspicion 17 to an agency designated to receive such reports under this 18 Act or to the Department. Whenever a mandated reporter is 19 required to report under this Act in his or her capacity as a 20 member of the staff of a medical or other public or private 21 institution, facility, board and care home, or agency, he or 22 she shall make a report to an agency designated to receive 23 such reports under this Act or to the Department in 24 accordance with the provisions of this Act and may also 25 notify the person in charge of the institution, facility, 26 board and care home, or agency or his or her designated agent 27 that the report has been made. Under no circumstances shall 28 any person in charge of such institution, facility, board and 29 care home, or agency, or his or her designated agent to whom 30 the notification has been made, exercise any control, 31 restraint, modification, or other change in the report or the 32 forwarding of the report to an agency designated to receive 33 such reports under this Act or to the Department. The SB1835 Engrossed -8- LRB9009206SMdvA 1 privileged quality of communication between any professional 2 person required to report and his or her patient or client 3 shall not apply to situations involving abused, neglected, or 4 financially exploited eligible adults and shall not 5 constitute grounds for failure to report as required by this 6 Act. 7 (a-7) A person making a report under this Act in the 8 belief that it is in the alleged victim's best interest shall 9 be immune from criminal or civil liability or professional 10 disciplinary action on account of making the report, 11 notwithstanding any requirements concerning the 12 confidentiality of information with respect to such eligible 13 adultpatientwhich might otherwise be applicable. 14 (a-9) Law enforcement officers shall continue to report 15 incidents of alleged abuse pursuant to the Illinois Domestic 16 Violence Act of 1986, notwithstanding any requirements under 17 this Act. 18 (b) Any person, institution or agency participating in 19 the making of a report, providing information or records 20 related to a report, assessment, or services, or 21 participating in the investigation of a report under this Act 22 in good faith, or taking photographs or x-rays as a result of 23 an authorized assessment, shall have immunity from any civil, 24 criminal or other liability in any civil, criminal or other 25 proceeding brought in consequence of making such report or 26 assessment or on account of submitting or otherwise 27 disclosing such photographs or x-rays to any agency 28 designated to receive reports of alleged or suspected abuse 29 or neglect. Any person, institution or agency authorized by 30 the Department to provide assessment, intervention, or 31 administrative services under this Act shall, in the good 32 faith performance of those services, have immunity from any 33 civil, criminal or other liability in any civil, criminal, or 34 other proceeding brought as a consequence of the performance SB1835 Engrossed -9- LRB9009206SMdvA 1 of those services. For the purposes of any civil, criminal, 2 or other proceeding, the good faith of any person required to 3 report, permitted to report, or participating in an 4 investigation of a report of alleged or suspected abuse, 5 neglect, or financial exploitation shall be presumed. 6 (c) The identity of a person making a report of alleged 7 or suspected abuse or neglect under this Act may be disclosed 8 by the Department or other agency provided for in this Act 9 only with such person's written consent or by court order. 10 (d) The Department shall by rule establish a system for 11 filing and compiling reports made under this Act. 12 (Source: P.A. 87-264; 87-435.) 13 (320 ILCS 20/4.1 new) 14 Sec. 4.1. Employer discrimination. No employer shall 15 discharge, demote or suspend, or threaten to discharge, 16 demote or suspend, or in any manner discriminate against any 17 employee who makes any good faith oral or written report of 18 suspected elder abuse, neglect, or financial exploitation or 19 who is or will be a witness or testify in any investigation 20 or proceeding concerning a report of suspected elder abuse, 21 neglect, or financial exploitation. 22 (320 ILCS 20/4.2 new) 23 Sec. 4.2. Any person who makes a report or who 24 investigates a report under this Act shall testify fully in 25 any judicial proceeding resulting from such report, as to any 26 evidence of abuse, neglect, or financial exploitation or the 27 cause thereof. Any person who is required to report a 28 suspected case of abuse, neglect, or financial exploitation 29 under Section 4 of this Act shall testify fully in any 30 administrative hearing resulting from such report, as to any 31 evidence of abuse, neglect, or financial exploitation or the 32 cause thereof. No evidence shall be excluded by reason of SB1835 Engrossed -10- LRB9009206SMdvA 1 any common law or statutory privilege relating to 2 communications between the alleged abuser or the eligible 3 adult subject of the report under this Act and the person 4 making or investigating the report. 5 (320 ILCS 20/5) (from Ch. 23, par. 6605) 6 Sec. 5. Procedure. 7 (a) A provider agency designated to receive reports of 8 alleged or suspected abuse,orneglect, or financial 9 exploitation under this Act shall, upon receiving such a 10 report, conduct a face-to-face assessment with respect to 11 such report. The assessment shall include, but not be 12 limited to, a visit to the residence of the eligible adult 13 who is the subject of the report and may include interviews 14 or consultations with service agencies or individuals who may 15 have knowledge of the eligible adult's circumstances. If, 16 after the assessment, the provider agency determines that the 17 case is substantiated it shall develop a service care plan 18 for the eligible adult. In developing the plan, the provider 19 agency may consult with any other appropriate provider of 20 services, and such providers shall be immune from civil or 21 criminal liability on account of such acts. The plan shall 22 include alternative suggested or recommended services which 23 are appropriate to the needs of the eligible adult and which 24 involve the least restriction of the eligible adult's 25 activities commensurate with his or her needs. Only those 26 services to which consent is provided in accordance with 27 Section 9 of this Act shall be provided, contingent upon the 28 availability of such services. 29 (b) A provider agency shall refer evidence of crimes 30 against an eligible adult to the appropriate law enforcement 31 agency according to Department policies. A referral to law 32 enforcement may be made at intake or any time during the 33 case. Where a provider agency has reason to believe the SB1835 Engrossed -11- LRB9009206SMdvA 1 death of an eligible adult may be the result of abuse or 2 neglect, the agency shall immediately report the matter to 3 the coroner or medical examiner and shall cooperate fully 4 with any subsequent investigation. 5 (Source: P.A. 85-1184.) 6 (320 ILCS 20/7) (from Ch. 23, par. 6607) 7 Sec. 7. Review. All services provided to an eligible 8 adult shall be reviewed by the provider agency on at least a 9 quarterly basis for up tonot less thanone year to determine 10 whether the service care plan should be continued or 11 modified. 12 (Source: P.A. 85-1184.) 13 (320 ILCS 20/8) (from Ch. 23, par. 6608) 14 Sec. 8. Access to records. All records concerning 15 reports of elder abuse,andneglect, and financial 16 exploitation and all records generated as a result of such 17 reports shall be confidential and shall not be disclosed 18 except as specifically authorized by this Act or other 19 applicable law. Access to such records, but not access to 20 the identity of the person or persons making a report of 21 alleged abuse,orneglect, or financial exploitation as 22 contained in such records, shall be allowed to the following 23 persons and for the following persons: 24 (1)(a)Department staff, provider agency staff, other 25 aging network staff, and regional administrative agency staff 26 in the furtherance of their responsibilities under this Act; 27 (2)(b)A law enforcement agency investigating known or 28 suspected elder abuse,orneglect, or financial exploitation. 29 Where a provider agency has reason to believe that the death 30 of an eligible adult may be the result of abuse or neglect, 31 the agency shall immediately provide the appropriate law 32 enforcement agency with all records pertaining to the SB1835 Engrossed -12- LRB9009206SMdvA 1 eligible adult; 2 (3)(c)A physician who has before him or her or who is 3 involved in the treatment of an eligible adult whom he or she 4 reasonably suspects may be abused,orneglected, or 5 financially exploited or who has been referred to the Elder 6 Abuse and Neglect Program; 7 (4)(d)An eligible adult reported to be abused,or8 neglected, or financially exploited, or such adult's guardian 9 unless such guardian is the abuser or the alleged abuser; 10 (5)(e)A court or a guardian ad litem, upon its or his 11 or her finding that access to such records may be necessary 12 for the determination of an issue before thesuchcourt. 13 However, such access shall be limited to an in camera 14 inspection of the records, unless the court determines that 15 disclosure of the information contained therein is necessary 16 for the resolution of an issue then pending before it; 17 (6)(f)A grand jury, upon its determination that access 18 to such records is necessary in the conduct of its official 19 business; 20 (7)(g)Any person authorized by the Director, in 21 writing, for audit or bona fide research purposes; 22 (8)(h)A coroner or medical examiner who has reason to 23 believe that an eligible adult has died as the result of 24 abuse,orneglect, or financial exploitation. The provider 25 agency shall immediately provide the coroner or medical 26 examiner with all records pertaining to the eligible adult; 27 and 28 (9)(i)Department of Professional Regulation staff and 29 members of the Social Work Examining and Disciplinary Board 30 in the course of investigating alleged violations of the 31 Clinical Social Work and Social Work Practice Act by provider 32 agency staff. 33 (Source: P.A. 89-387, eff. 8-20-95.) SB1835 Engrossed -13- LRB9009206SMdvA 1 (320 ILCS 20/9) (from Ch. 23, par. 6609) 2 Sec. 9. Authority to consent to services. (a) If an 3 eligible adult consents to services being provided according 4 to the service care plan, such services shall be arranged to 5 meet the adult's needs, based upon the availability of 6 resources to provide such services. If an adult withdraws 7 his or her consent or refuses to accept such services, the 8 services shall not be provided. 9 (b) If it reasonably appears to the Department or other 10 agency designated under this Act that a person is an eligible 11 adult and lacks the capacity to consent to necessary 12 services, including an assessment, the Department or other 13 agency may seek the appointment of atemporaryguardian as 14 provided in Article XIa of the Probate Act of 1975 for the 15 purpose of consenting to such services. 16 (c) A guardian of the person of an eligible adult may 17 consent to services being provided according to the service 18 care plan. If a guardian withdraws his or her consent or 19 refuses to allow services to be provided to the eligible 20 adult, the Department, an agency designated under this Act, 21 or the office of the Attorney General may request a court 22 orderan order of protection under the Illinois Domestic23Violence Act of 1986seeking appropriate remedies, and may in 24 addition request removal of the guardian and appointment of a 25 successor guardian. 26 (d) If an emergency exists and the Department or other 27 agency designated under this Act reasonably believes that a 28 person is an eligible adult and lacks the capacity to consent 29 to necessary services, the Department or other agency may 30 request an ex parte order from the circuit court of the 31 county in which the petitioner or respondent resides or in 32 which the alleged abuse,orneglect, or financial 33 exploitation occurred, authorizing an assessment of a report 34 of alleged or suspected abuse,orneglect, or financial SB1835 Engrossed -14- LRB9009206SMdvA 1 exploitation orandthe provision of necessary services, or 2 both, including relief available under the Illinois Domestic 3 Violence Act of 1986. Petitions filed under this subsection 4 shall be treated as expedited proceedings. 5 (e) Within 15 days after the entry of the ex parte 6 emergency order, the order shall expire, or, if the need for 7 assessment or services continues, the provider agency shall 8 petition for the appointment of a guardian as provided in 9 Article XIa of the Probate Act of 1975 for the purpose of 10 consenting to such assessment or services or to protect the 11 eligible adult from further harm. 12 (Source: P.A. 85-1184.) 13 (320 ILCS 20/11) (from Ch. 23, par. 6611) 14 Sec. 11. Annual Reports. The Department shall file with 15 the Governor and the General Assembly, within 27090days 16 after the end of each fiscal year, a report concerning its 17 implementation of this Act during such fiscal year, together 18 with any recommendations for future implementation. 19 (Source: P.A. 85-1184.) 20 (320 ILCS 20/13 new) 21 Sec. 13. Access. 22 (a) The designated provider agencies shall have access 23 to eligible adults who have been reported or found to be 24 victims of abuse, neglect, or financial exploitation in order 25 to assess the validity of the report, assess other needs of 26 the eligible adult, and provide services in accordance with 27 this Act. 28 (b) Where access to an eligible adult is denied, the 29 Office of the Attorney General, the Department, or the 30 provider agency may petition the court for an order to 31 require appropriate access where: 32 (1) a caregiver or third party has interfered with SB1835 Engrossed -15- LRB9009206SMdvA 1 the assessment or service plan, or 2 (2) the agency has reason to believe that the 3 eligible adult is denying access because of coercion, 4 extortion, or justifiable fear of future abuse, neglect, 5 or financial exploitation. 6 (c) The petition for an order requiring appropriate 7 access shall be afforded an expedited hearing in the circuit 8 court. 9 (d) If the elder abuse provider agency has substantiated 10 financial exploitation against an eligible adult, and has 11 documented a reasonable belief that the eligible adult will 12 be irreparably harmed as a result of the financial 13 exploitation, the Office of the Attorney General, the 14 Department, or the provider agency may petition for an order 15 freezing the assets of the eligible adult. The petition shall 16 be filed in the county or counties in which the assets are 17 located. The court's order shall prohibit the sale, gifting, 18 transfer, or wasting of the assets of the eligible adult, 19 both real and personal, owned by, or vested in, the eligible 20 adult, without the express permission of the court. The 21 petition to freeze the assets of the eligible adult shall be 22 afforded an expedited hearing in the circuit court. 23 (320 ILCS 20/12 rep.) 24 Section 10. The Elder Abuse and Neglect Act is amended 25 by repealing Section 12. 26 Section 15. The Code of Criminal Procedure of 1963 is 27 amended by adding Section 115-10.3 as follows: 28 (725 ILCS 5/115-10.3 new) 29 Sec. 115-10.3. Hearsay exception regarding elder adults. 30 (a) In a prosecution for abuse, neglect, or financial 31 exploitation perpetrated upon or against an eligible adult, SB1835 Engrossed -16- LRB9009206SMdvA 1 as defined in the Elder Abuse and Neglect Act, who at the 2 time the act was committed has been diagnosed by a physician 3 to suffer from (i) any form of dementia, developmental 4 disability, or other form of mental incapacity or (ii) any 5 physical infirmity which prevents the eligible adult's 6 appearance in court, including but not limited to 7 prosecutions for violations of Sections 10-1, 10-2, 10-3, 8 10-3.1, 10-4, 11-11, 12-1, 12-2, 12-3, 12-3.2, 12-4, 12-4.1, 9 12-4.2, 12-4.5, 12-4.6, 12-4.7, 12-5, 12-6, 12-7.3, 12-7.4, 10 12-11, 12-13, 12-14, 12-15, 12-16, 12-21, 16-1, 16-1.3, and 11 17-3 of the Criminal Code of 1961, the following evidence 12 shall be admitted as an exception to the hearsay rule: 13 (1) testimony by an eligible adult, of an out of 14 court statement made by the eligible adult, that he or 15 she complained of such act to another; and 16 (2) testimony of an out of court statement made by 17 the eligible adult, describing any complaint of such act 18 or matter or detail pertaining to any act which is an 19 element of an offense which is the subject of a 20 prosecution for abuse, neglect, or financial exploitation 21 perpetrated upon or against the eligible adult. 22 (b) Such testimony shall only be admitted if: 23 (1) The court finds in a hearing conducted outside 24 the presence of the jury that the time, content, and 25 circumstances of the statement provide sufficient 26 safeguards of reliability; and 27 (2) The eligible adult either: 28 (A) testifies at the proceeding; or 29 (B) is unavailable as a witness and there is 30 corroborative evidence of the act which is the 31 subject of the statement. 32 (c) If a statement is admitted pursuant to this Section, 33 the court shall instruct the jury that it is for the jury to 34 determine the weight and credibility to be given the SB1835 Engrossed -17- LRB9009206SMdvA 1 statement and that, in making the determination, it shall 2 consider the condition of the eligible adult, the nature of 3 the statement, the circumstances under which the statement 4 was made, and any other relevant factor. 5 (d) The proponent of the statement shall give the 6 adverse party reasonable notice of his or her intention to 7 offer the statement and the particulars of the statement. 8 Section 20. The Code of Civil Procedure is amended by 9 adding Part 27 to Article VIII as follows: 10 (735 ILCS 5/Art. VIII, Part 27 heading new) 11 PART 27. ELDER ADULTS 12 (735 ILCS 5/8-2701 new) 13 Sec. 8-2701. Admissibility of evidence; out of court 14 statements; elder abuse. 15 (a) An out of court statement made by an eligible adult, 16 as defined in the Elder Abuse and Neglect Act, who has been 17 diagnosed by a physician to suffer from (i) any form of 18 dementia, developmental disability, or other form of mental 19 incapacity or (ii) any physical infirmity which prevents the 20 eligible adult's appearance in court, describing any act of 21 elder abuse, neglect, or financial exploitation, or testimony 22 by an eligible adult of an out of court statement made by the 23 eligible adult that he or she complained of such acts to 24 another, is admissible in any civil proceeding, if: 25 (1) the court conducts a hearing outside the 26 presence of the jury and finds that the time, content, 27 and circumstances of the statement provide sufficient 28 safeguards of reliability; and 29 (2) the eligible adult either: 30 (A) testifies at the proceeding; or 31 (B) is unavailable as a witness and there is SB1835 Engrossed -18- LRB9009206SMdvA 1 corroborative evidence of the act which is the 2 subject of the statement. 3 (b) If a statement is admitted pursuant to this Section, 4 the court shall instruct the jury that it is for the jury to 5 determine the weight and credibility to be given to the 6 statement and that, in making its determination, it shall 7 consider the condition of the eligible adult, the nature of 8 the statement, the circumstances under which the statement 9 was made, and any other relevant factors. 10 (c) The proponent of the statement shall give the 11 adverse party reasonable notice of an intention to offer the 12 statement and the particulars of the statement. 13 Section 25. The Probate Act of 1975 is amended by 14 changing Section 11a-10 as follows: 15 (755 ILCS 5/11a-10) (from Ch. 110 1/2, par. 11a-10) 16 Sec. 11a-10. Procedures preliminary to hearing.)17 (a) Upon the filing of a petition pursuant to Section 18 11a-8, the court shall set a date and place for hearing to 19 take place within 30 days. The court shall appoint a 20 guardian ad litem to report to the court concerning the 21 respondent's best interests consistent with the provisions of 22 this Section, except that the appointment of a guardian ad 23 litem shall not be required when the court determines that 24 such appointment is not necessary for the protection of the 25 respondent or a reasonably informed decision on the petition. 26 If the guardian ad litem is not a licensed attorney, he or 27 she shall be qualified, by training or experience, to work 28 with or advocate for the developmentally disabled, mentally 29 ill, physically disabled, the elderly, or persons disabled 30 because of mental deterioration, depending on the type of 31 disability that is alleged in the petition. The court may 32 allow the guardian ad litem reasonable compensation. The SB1835 Engrossed -19- LRB9009206SMdvA 1 guardian ad litem may consult with a person who by training 2 or experience is qualified to work with persons with a 3 developmental disability, persons with mental illness, or 4 physically disabled persons, or persons disabled because of 5 mental deterioration, depending on the type of disability 6 that is alleged. The guardian ad litem shall personally 7 observe the respondent prior to the hearing and shall inform 8 him orally and in writing of the contents of the petition and 9 of his rights under Section 11a-11. The guardian ad litem 10 shall also attempt to elicit the respondent's position 11 concerning the adjudication of disability, the proposed 12 guardian, a proposed change in residential placement, changes 13 in care that might result from the guardianship, and other 14 areas of inquiry deemed appropriate by the court. At or 15 before the hearing, the guardian ad litem shall file a 16 written report detailing his or her observations of the 17 respondent, the responses of the respondent to any of the 18 inquires detailed in this Section, the opinion of the 19 guardian ad litem or other professionals with whom the 20 guardian ad litem consulted concerning the appropriateness of 21 guardianship, and any other material issue discovered by the 22 guardian ad litem. The guardian ad litem shall appear at the 23 hearing and testify as to any issues presented in his or her 24 report. 25 (b) The court (1) may appoint counsel for the 26 respondent, if the court finds that the interests of the 27 respondent will be best served by the appointment, and (2) 28 shall appoint counsel upon respondent's request or if the 29 respondent takes a position adverse to that of the guardian 30 ad litem. The respondent shall be permitted to obtain the 31 appointment of counsel either at the hearing or by any 32 written or oral request communicated to the court prior to 33 the hearing. The summons shall inform the respondent of this 34 right to obtain appointed counsel. The court may allow SB1835 Engrossed -20- LRB9009206SMdvA 1 counsel for the respondent reasonable compensation. 2 (c) If the respondent is unable to pay the fee of the 3 guardian ad litem or appointed counsel, or both, the court 4 may enter an order for the petitioner to pay all such fees or 5 such amounts as the respondent or the respondent's estate may 6 be unable to pay. However, in cases where the Office of State 7 Guardian is the petitioner, consistent with Section 30 of the 8 Guardianship and Advocacy Act, or where an elder abuse 9 provider agency is the petitioner, pursuant to Section 9 of 10 the Elder Abuse and Neglect Act, no guardian ad litem or 11 legal fees shall be assessed against the Office of State 12 Guardian or the elder abuse provider agency. 13 (d) The hearing may be held at such convenient place as 14 the court directs, including at a facility in which the 15 respondent resides. 16 (e) Unless he is the petitioner, the respondent shall be 17 personally served with a copy of the petition and a summons 18 not less than 14 days before the hearing. The summons shall 19 be printed in large, bold type and shall include the 20 following notice: 21 NOTICE OF RIGHTS OF RESPONDENT 22 You have been named as a respondent in a guardianship 23 petition asking that you be declared a disabled person. If 24 the court grants the petition, a guardian will be appointed 25 for you. A copy of the guardianship petition is attached for 26 your convenience. 27 The date and time of the hearing are: 28 The place where the hearing will occur is: 29 The Judge's name and phone number is: 30 If a guardian is appointed for you, the guardian may be 31 given the right to make all important personal decisions for 32 you, such as where you may live, what medical treatment you 33 may receive, what places you may visit, and who may visit 34 you. A guardian may also be given the right to control and SB1835 Engrossed -21- LRB9009206SMdvA 1 manage your money and other property, including your home, if 2 you own one. You may lose the right to make these decisions 3 for yourself. 4 You have the following legal rights: 5 (1) You have the right to be present at the court 6 hearing. 7 (2) You have the right to be represented by a 8 lawyer, either one that you retain, or one appointed by 9 the Judge. 10 (3) You have the right to ask for a jury of six 11 persons to hear your case. 12 (4) You have the right to present evidence to the 13 court and to confront and cross-examine witnesses. 14 (5) You have the right to ask the Judge to appoint 15 an independent expert to examine you and give an opinion 16 about your need for a guardian. 17 (6) You have the right to ask that the court 18 hearing be closed to the public. 19 (7) You have the right to tell the court whom you 20 prefer to have for your guardian. 21 You do not have to attend the court hearing if you do not 22 want to be there. If you do not attend, the Judge may 23 appoint a guardian if the Judge finds that a guardian would 24 be of benefit to you. The hearing will not be postponed or 25 canceled if you do not attend. 26 IT IS VERY IMPORTANT THAT YOU ATTEND THE HEARING IF YOU 27 DO NOT WANT A GUARDIAN OR IF YOU WANT SOMEONE OTHER THAN THE 28 PERSON NAMED IN THE GUARDIANSHIP PETITION TO BE YOUR 29 GUARDIAN. IF YOU DO NOT WANT A GUARDIAN OF IF YOU HAVE ANY 30 OTHER PROBLEMS, YOU SHOULD CONTACT AN ATTORNEY OR COME TO 31 COURT AND TELL THE JUDGE. 32 Service of summons and the petition may be made by a 33 private person 18 years of age or over who is not a party to 34 the action. SB1835 Engrossed -22- LRB9009206SMdvA 1 (f) Notice of the time and place of the hearing shall be 2 given by the petitioner by mail or in person to those 3 persons, including the proposed guardian, whose names and 4 addresses appear in the petition and who do not waive notice, 5 not less than 14 days before the hearing. 6 (Source: P.A. 88-380; 89-396, eff. 8-20-95.)