Public Act 90-0628 of the 90th General Assembly
Public Act 90-0628
SB1835 Enrolled LRB9009206SMdvA
AN ACT regarding elder abuse, amending named Acts.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Elder Abuse and Neglect Act is amended by
changing Sections 2, 3, 4, 5, 7, 8, 9, and 11, and by adding
Sections 3.5, 4.1, 4.2, and 13 as follows:
(320 ILCS 20/2) (from Ch. 23, par. 6602)
Sec. 2. Definitions. As used in this Act, unless the
context requires otherwise:
(a) "Abuse" means causing any physical, mental or sexual
injury to an eligible adult, including exploitation of such
adult's financial resources.
Nothing in this Act shall be construed to mean that an
eligible adult is a victim of abuse or neglect for the sole
reason that he or she is being furnished with or relies upon
treatment by spiritual means through prayer alone, in
accordance with the tenets and practices of a recognized
church or religious denomination.
Nothing in this Act shall be construed to mean that an
eligible adult is a victim of abuse because of health care
services provided or not provided by licensed health care
professionals.
(a-5) "Abuser" means a person who abuses, neglects, or
financially exploits an eligible adult.
(a-7) "Caregiver" means a person who either as a result
of a family relationship, voluntarily, or in exchange for
compensation has assumed responsibility for all or a portion
of the care of an eligible adult who needs assistance with
activities of daily living.
(b) "Department" means the Department on Aging of the
State of Illinois.
(c) "Director" means the Director of the Department.
(d) "Domestic living situation" means a residence where
the eligible adult lives alone or with his or her family or a
caregiver caretaker, or others, or a board and care home or
other community-based unlicensed facility, but is not:
(1) A licensed facility as defined in Section
1-113 of the Nursing Home Care Act;
(2) A "life care facility" as defined in the Life
Care Facilities Act;
(3) A home, institution, or other place operated by
the federal government or agency thereof or by the State
of Illinois;
(4) A hospital, sanitarium, or other institution,
the principal activity or business of which is the
diagnosis, care, and treatment of human illness through
the maintenance and operation of organized facilities
therefor, which is required to be licensed under the
Hospital Licensing Act;
(5) A "community living facility" as defined in the
Community Living Facilities Licensing Act;
(6) A "community residential alternative" as
defined in the Community Residential Alternatives
Licensing Act; and
(7) A "community-integrated living arrangement" as
defined in the Community-Integrated Living Arrangements
Licensure and Certification Act.
(e) "Eligible adult" means a person 60 years of age or
older who resides in a domestic living situation setting and
is, or is alleged to be, abused, or neglected, or financially
exploited by another individual.
(f) "Emergency" means a situation in which an eligible
adult is living in conditions presenting a risk of death or
physical, mental or sexual injury and the provider agency has
reason to believe the eligible adult is unable to consent to
services which would alleviate that risk.
(f-5) "Mandated reporter" means any of the following
persons while engaged in carrying out their professional
duties:
(1) a professional or professional's delegate while
engaged in: (i) social services, (ii) law enforcement,
(iii) education, (iv) the care of an eligible adult or
eligible adults, or (v) any of the occupations required
to be licensed under the Clinical Psychologist Licensing
Act, the Clinical Social Work and Social Work Practice
Act, the Illinois Dental Practice Act, the Dietetic and
Nutrition Services Practice Act, the Marriage and Family
Therapy Licensing Act, the Medical Practice Act of 1987,
the Naprapathic Practice Act, the Illinois Nursing Act of
1987, the Nursing Home Administrators Licensing and
Disciplinary Act, the Illinois Occupational Therapy
Practice Act, the Illinois Optometric Practice Act of
1987, the Pharmacy Practice Act of 1987, the Illinois
Physical Therapy Act, the Physician Assistant Practice
Act of 1987, the Podiatric Medical Practice Act of 1987,
the Professional Counselor and Clinical Professional
Counselor Licensing Act, the Illinois Speech-Language
Pathology and Audiology Practice Act, the Veterinary
Medicine and Surgery Practice Act of 1994, and the
Illinois Public Accounting Act;
(2) an employee of a vocational rehabilitation
facility prescribed or supervised by the Department of
Human Services;
(3) an administrator, employee, or person providing
services in or through an unlicensed community based
facility;
(4) a Christian Science Practitioner;
(5) field personnel of the Department of Public
Aid, Department of Public Health, and Department of Human
Services, and any county or municipal health department;
(6) personnel of the Department of Human Services,
the Guardianship and Advocacy Commission, the State Fire
Marshal, local fire departments, the Department on Aging
and its subsidiary Area Agencies on Aging and provider
agencies, and the Office of State Long Term Care
Ombudsman;
(7) any employee of the State of Illinois not
otherwise specified herein who is involved in providing
services to eligible adults, including professionals
providing medical or rehabilitation services and all
other persons having direct contact with eligible adults;
or
(9) a person who performs the duties of a coroner or
medical examiner.
(g) "Neglect" means another individual's failure to
provide an eligible adult with or willful withholding from an
eligible adult the necessities of life including, but not
limited to, food, clothing, shelter or medical care. This
subsection does not create any new affirmative duty to
provide support to eligible adults. Nothing in this Act
shall be construed to mean that an eligible adult is a victim
of neglect because of health care services provided or not
provided by licensed health care professionals.
(h) "Provider agency" means any public or nonprofit
agency in a planning and service area appointed by the
regional administrative agency with prior approval by the
Department on Aging to receive and assess reports of alleged
or suspected abuse, or neglect, or financial exploitation.
(i) "Regional administrative agency" means any public or
nonprofit agency in a planning and service area so designated
by the Department, provided that the designated Area Agency
on Aging shall be designated the regional administrative
agency if it so requests. The Department shall assume the
functions of the regional administrative agency for any
planning and service area where another agency is not so
designated.
(j) "Substantiated case" means a reported case of
alleged or suspected abuse, or neglect, or financial
exploitation in which a provider agency, after assessment,
determines that there is reason to believe abuse, or neglect,
or financial exploitation has occurred.
(Source: P.A. 86-820; 87-264.)
(320 ILCS 20/3) (from Ch. 23, par. 6603)
Sec. 3. Responsibilities.
(a) The Department shall establish, design and manage a
program of response and services for persons 60 years of age
and older who have been, or are alleged to be, victims of
elder abuse, or neglect, or financial exploitation. The
Department shall contract with or fund or, contract with and
fund, regional administrative agencies, or provider agencies,
or both, for the provision of those functions, and,
contingent on adequate funding, with attorneys or legal
services provider agencies for the provision of legal
assistance services pursuant to this Act.
(b) Each regional administrative agency shall designate
provider agencies within its planning and service area with
prior approval by the Department on Aging, monitor the use of
services, provide technical assistance to the provider
agencies and be involved in program development activities.
(c) Provider agencies shall assist, to the extent
possible, eligible adults who need agency services to allow
them to continue to function independently. Such assistance
shall include but not be limited to receiving reports of
alleged or suspected abuse, or neglect, or financial
exploitation, conducting face-to-face assessments of such
reported cases, determination of substantiated cases,
referral of substantiated cases for necessary support
services, referral of criminal conduct to law enforcement in
accordance with Department guidelines, and provision of case
work and follow-up services on substantiated cases.
(Source: P.A. 85-1184.)
(320 ILCS 20/3.5 new)
Sec. 3.5. Other Responsibilities. The Department shall
also be responsible for the following activities, contingent
upon adequate funding:
(a) promotion of a wide range of endeavors for the
purpose of preventing elder abuse, neglect, and financial
exploitation in both domestic and institutional settings,
including, but not limited to, promotion of public and
professional education to increase awareness of elder abuse,
neglect, and financial exploitation, to increase reports, and
to improve response by various legal, financial, social, and
health systems;
(b) coordination of efforts with other agencies,
councils, and like entities, to include but not be limited
to, the Office of the Attorney General, the State Police, the
Law Enforcement Training and Standards Board, the State
Triad, the Criminal Justice Information Authority, the
Departments of Public Health, Public Aid, and Human Services,
the Family Violence Coordinating Council, the Violence
Prevention Authority, and other entities which may impact
awareness of, and response to, elder abuse, neglect, and
financial exploitation;
(c) collection and analysis of data;
(d) monitoring of the performance of regional
administrative agencies and elder abuse provider agencies;
and
(e) promotion of prevention activities.
(320 ILCS 20/4) (from Ch. 23, par. 6604)
Sec. 4. Reports of abuse or neglect.
(a) Any person who suspects the wishing to report a case
of alleged or suspected abuse, or neglect, or financial
exploitation of an eligible adult may make such a report this
suspicion to an agency designated to receive such reports
under this Act or to the Department.
(a-5) If any mandated reporter has reason to believe
that an eligible adult, who because of dysfunction is unable
to seek assistance for himself or herself, has, within the
previous 12 months, been subjected to abuse, neglect, or
financial exploitation, the mandated reporter shall, within
24 hours after developing such belief, report this suspicion
to an agency designated to receive such reports under this
Act or to the Department. Whenever a mandated reporter is
required to report under this Act in his or her capacity as a
member of the staff of a medical or other public or private
institution, facility, board and care home, or agency, he or
she shall make a report to an agency designated to receive
such reports under this Act or to the Department in
accordance with the provisions of this Act and may also
notify the person in charge of the institution, facility,
board and care home, or agency or his or her designated agent
that the report has been made. Under no circumstances shall
any person in charge of such institution, facility, board and
care home, or agency, or his or her designated agent to whom
the notification has been made, exercise any control,
restraint, modification, or other change in the report or the
forwarding of the report to an agency designated to receive
such reports under this Act or to the Department. The
privileged quality of communication between any professional
person required to report and his or her patient or client
shall not apply to situations involving abused, neglected, or
financially exploited eligible adults and shall not
constitute grounds for failure to report as required by this
Act.
(a-7) A person making a report under this Act in the
belief that it is in the alleged victim's best interest shall
be immune from criminal or civil liability or professional
disciplinary action on account of making the report,
notwithstanding any requirements concerning the
confidentiality of information with respect to such eligible
adult patient which might otherwise be applicable.
(a-9) Law enforcement officers shall continue to report
incidents of alleged abuse pursuant to the Illinois Domestic
Violence Act of 1986, notwithstanding any requirements under
this Act.
(b) Any person, institution or agency participating in
the making of a report, providing information or records
related to a report, assessment, or services, or
participating in the investigation of a report under this Act
in good faith, or taking photographs or x-rays as a result of
an authorized assessment, shall have immunity from any civil,
criminal or other liability in any civil, criminal or other
proceeding brought in consequence of making such report or
assessment or on account of submitting or otherwise
disclosing such photographs or x-rays to any agency
designated to receive reports of alleged or suspected abuse
or neglect. Any person, institution or agency authorized by
the Department to provide assessment, intervention, or
administrative services under this Act shall, in the good
faith performance of those services, have immunity from any
civil, criminal or other liability in any civil, criminal, or
other proceeding brought as a consequence of the performance
of those services. For the purposes of any civil, criminal,
or other proceeding, the good faith of any person required to
report, permitted to report, or participating in an
investigation of a report of alleged or suspected abuse,
neglect, or financial exploitation shall be presumed.
(c) The identity of a person making a report of alleged
or suspected abuse or neglect under this Act may be disclosed
by the Department or other agency provided for in this Act
only with such person's written consent or by court order.
(d) The Department shall by rule establish a system for
filing and compiling reports made under this Act.
(Source: P.A. 87-264; 87-435.)
(320 ILCS 20/4.1 new)
Sec. 4.1. Employer discrimination. No employer shall
discharge, demote or suspend, or threaten to discharge,
demote or suspend, or in any manner discriminate against any
employee who makes any good faith oral or written report of
suspected elder abuse, neglect, or financial exploitation or
who is or will be a witness or testify in any investigation
or proceeding concerning a report of suspected elder abuse,
neglect, or financial exploitation.
(320 ILCS 20/4.2 new)
Sec. 4.2. Testimony by mandated reporter and
investigator. Any mandated reporter who makes a report or
any person who investigates a report under this Act shall
testify fully in any judicial proceeding resulting from such
report, as to any evidence of abuse, neglect, or financial
exploitation or the cause thereof. Any mandated reporter who
is required to report a suspected case of abuse, neglect, or
financial exploitation under Section 4 of this Act shall
testify fully in any administrative hearing resulting from
such report, as to any evidence of abuse, neglect, or
financial exploitation or the cause thereof. No evidence
shall be excluded by reason of any common law or statutory
privilege relating to communications between the alleged
abuser or the eligible adult subject of the report under this
Act and the person making or investigating the report.
(320 ILCS 20/5) (from Ch. 23, par. 6605)
Sec. 5. Procedure.
(a) A provider agency designated to receive reports of
alleged or suspected abuse, or neglect, or financial
exploitation under this Act shall, upon receiving such a
report, conduct a face-to-face assessment with respect to
such report. The assessment shall include, but not be
limited to, a visit to the residence of the eligible adult
who is the subject of the report and may include interviews
or consultations with service agencies or individuals who may
have knowledge of the eligible adult's circumstances. If,
after the assessment, the provider agency determines that the
case is substantiated it shall develop a service care plan
for the eligible adult. In developing the plan, the provider
agency may consult with any other appropriate provider of
services, and such providers shall be immune from civil or
criminal liability on account of such acts. The plan shall
include alternative suggested or recommended services which
are appropriate to the needs of the eligible adult and which
involve the least restriction of the eligible adult's
activities commensurate with his or her needs. Only those
services to which consent is provided in accordance with
Section 9 of this Act shall be provided, contingent upon the
availability of such services.
(b) A provider agency shall refer evidence of crimes
against an eligible adult to the appropriate law enforcement
agency according to Department policies. A referral to law
enforcement may be made at intake or any time during the
case. Where a provider agency has reason to believe the
death of an eligible adult may be the result of abuse or
neglect, the agency shall immediately report the matter to
the coroner or medical examiner and shall cooperate fully
with any subsequent investigation.
(Source: P.A. 85-1184.)
(320 ILCS 20/7) (from Ch. 23, par. 6607)
Sec. 7. Review. All services provided to an eligible
adult shall be reviewed by the provider agency on at least a
quarterly basis for up to not less than one year to determine
whether the service care plan should be continued or
modified.
(Source: P.A. 85-1184.)
(320 ILCS 20/8) (from Ch. 23, par. 6608)
Sec. 8. Access to records. All records concerning
reports of elder abuse, and neglect, and financial
exploitation and all records generated as a result of such
reports shall be confidential and shall not be disclosed
except as specifically authorized by this Act or other
applicable law. Access to such records, but not access to
the identity of the person or persons making a report of
alleged abuse, or neglect, or financial exploitation as
contained in such records, shall be allowed to the following
persons and for the following persons:
(1) (a) Department staff, provider agency staff, other
aging network staff, and regional administrative agency staff
in the furtherance of their responsibilities under this Act;
(2) (b) A law enforcement agency investigating known or
suspected elder abuse, or neglect, or financial exploitation.
Where a provider agency has reason to believe that the death
of an eligible adult may be the result of abuse or neglect,
the agency shall immediately provide the appropriate law
enforcement agency with all records pertaining to the
eligible adult;
(3) (c) A physician who has before him or her or who is
involved in the treatment of an eligible adult whom he or she
reasonably suspects may be abused, or neglected, or
financially exploited or who has been referred to the Elder
Abuse and Neglect Program;
(4) (d) An eligible adult reported to be abused, or
neglected, or financially exploited, or such adult's guardian
unless such guardian is the abuser or the alleged abuser;
(5) (e) A court or a guardian ad litem, upon its or his
or her finding that access to such records may be necessary
for the determination of an issue before the such court.
However, such access shall be limited to an in camera
inspection of the records, unless the court determines that
disclosure of the information contained therein is necessary
for the resolution of an issue then pending before it;
(6) (f) A grand jury, upon its determination that access
to such records is necessary in the conduct of its official
business;
(7) (g) Any person authorized by the Director, in
writing, for audit or bona fide research purposes;
(8) (h) A coroner or medical examiner who has reason to
believe that an eligible adult has died as the result of
abuse, or neglect, or financial exploitation. The provider
agency shall immediately provide the coroner or medical
examiner with all records pertaining to the eligible adult;
and
(9) (i) Department of Professional Regulation staff and
members of the Social Work Examining and Disciplinary Board
in the course of investigating alleged violations of the
Clinical Social Work and Social Work Practice Act by provider
agency staff.
(Source: P.A. 89-387, eff. 8-20-95.)
(320 ILCS 20/9) (from Ch. 23, par. 6609)
Sec. 9. Authority to consent to services. (a) If an
eligible adult consents to services being provided according
to the service care plan, such services shall be arranged to
meet the adult's needs, based upon the availability of
resources to provide such services. If an adult withdraws
his or her consent or refuses to accept such services, the
services shall not be provided.
(b) If it reasonably appears to the Department or other
agency designated under this Act that a person is an eligible
adult and lacks the capacity to consent to necessary
services, including an assessment, the Department or other
agency may seek the appointment of a temporary guardian as
provided in Article XIa of the Probate Act of 1975 for the
purpose of consenting to such services.
(c) A guardian of the person of an eligible adult may
consent to services being provided according to the service
care plan. If a guardian withdraws his or her consent or
refuses to allow services to be provided to the eligible
adult, the Department, an agency designated under this Act,
or the office of the Attorney General may request a court
order an order of protection under the Illinois Domestic
Violence Act of 1986 seeking appropriate remedies, and may in
addition request removal of the guardian and appointment of a
successor guardian.
(d) If an emergency exists and the Department or other
agency designated under this Act reasonably believes that a
person is an eligible adult and lacks the capacity to consent
to necessary services, the Department or other agency may
request an ex parte order from the circuit court of the
county in which the petitioner or respondent resides or in
which the alleged abuse, or neglect, or financial
exploitation occurred, authorizing an assessment of a report
of alleged or suspected abuse, or neglect, or financial
exploitation or and the provision of necessary services, or
both, including relief available under the Illinois Domestic
Violence Act of 1986. Petitions filed under this subsection
shall be treated as expedited proceedings.
(e) Within 15 days after the entry of the ex parte
emergency order, the order shall expire, or, if the need for
assessment or services continues, the provider agency shall
petition for the appointment of a guardian as provided in
Article XIa of the Probate Act of 1975 for the purpose of
consenting to such assessment or services or to protect the
eligible adult from further harm.
(Source: P.A. 85-1184.)
(320 ILCS 20/11) (from Ch. 23, par. 6611)
Sec. 11. Annual Reports. The Department shall file with
the Governor and the General Assembly, within 270 90 days
after the end of each fiscal year, a report concerning its
implementation of this Act during such fiscal year, together
with any recommendations for future implementation.
(Source: P.A. 85-1184.)
(320 ILCS 20/13 new)
Sec. 13. Access.
(a) The designated provider agencies shall have access
to eligible adults who have been reported or found to be
victims of abuse, neglect, or financial exploitation in order
to assess the validity of the report, assess other needs of
the eligible adult, and provide services in accordance with
this Act.
(b) Where access to an eligible adult is denied, the
Office of the Attorney General, the Department, or the
provider agency may petition the court for an order to
require appropriate access where:
(1) a caregiver or third party has interfered with
the assessment or service plan, or
(2) the agency has reason to believe that the
eligible adult is denying access because of coercion,
extortion, or justifiable fear of future abuse, neglect,
or financial exploitation.
(c) The petition for an order requiring appropriate
access shall be afforded an expedited hearing in the circuit
court.
(d) If the elder abuse provider agency has substantiated
financial exploitation against an eligible adult, and has
documented a reasonable belief that the eligible adult will
be irreparably harmed as a result of the financial
exploitation, the Office of the Attorney General, the
Department, or the provider agency may petition for an order
freezing the assets of the eligible adult. The petition shall
be filed in the county or counties in which the assets are
located. The court's order shall prohibit the sale, gifting,
transfer, or wasting of the assets of the eligible adult,
both real and personal, owned by, or vested in, the eligible
adult, without the express permission of the court. The
petition to freeze the assets of the eligible adult shall be
afforded an expedited hearing in the circuit court.
(320 ILCS 20/12 rep.)
Section 10. The Elder Abuse and Neglect Act is amended
by repealing Section 12.
Section 15. The Code of Criminal Procedure of 1963 is
amended by adding Section 115-10.3 as follows:
(725 ILCS 5/115-10.3 new)
Sec. 115-10.3. Hearsay exception regarding elder adults.
(a) In a prosecution for abuse, neglect, or financial
exploitation perpetrated upon or against an eligible adult,
as defined in the Elder Abuse and Neglect Act, who at the
time the act was committed has been diagnosed by a physician
to suffer from (i) any form of dementia, developmental
disability, or other form of mental incapacity or (ii) any
physical infirmity which prevents the eligible adult's
appearance in court, including but not limited to
prosecutions for violations of Sections 10-1, 10-2, 10-3,
10-3.1, 10-4, 11-11, 12-1, 12-2, 12-3, 12-3.2, 12-4, 12-4.1,
12-4.2, 12-4.5, 12-4.6, 12-4.7, 12-5, 12-6, 12-7.3, 12-7.4,
12-11, 12-13, 12-14, 12-15, 12-16, 12-21, 16-1, 16-1.3, and
17-3 of the Criminal Code of 1961, the following evidence
shall be admitted as an exception to the hearsay rule:
(1) testimony by an eligible adult, of an out of
court statement made by the eligible adult, that he or
she complained of such act to another; and
(2) testimony of an out of court statement made by
the eligible adult, describing any complaint of such act
or matter or detail pertaining to any act which is an
element of an offense which is the subject of a
prosecution for abuse, neglect, or financial exploitation
perpetrated upon or against the eligible adult.
(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside
the presence of the jury that the time, content, and
circumstances of the statement provide sufficient
safeguards of reliability; and
(2) The eligible adult either:
(A) testifies at the proceeding; or
(B) is unavailable as a witness and there is
corroborative evidence of the act which is the
subject of the statement.
(c) If a statement is admitted pursuant to this Section,
the court shall instruct the jury that it is for the jury to
determine the weight and credibility to be given the
statement and that, in making the determination, it shall
consider the condition of the eligible adult, the nature of
the statement, the circumstances under which the statement
was made, and any other relevant factor.
(d) The proponent of the statement shall give the
adverse party reasonable notice of his or her intention to
offer the statement and the particulars of the statement.
Section 20. The Code of Civil Procedure is amended by
adding Part 27 to Article VIII as follows:
(735 ILCS 5/Art. VIII, Part 27 heading new)
PART 27. ELDER ADULTS
(735 ILCS 5/8-2701 new)
Sec. 8-2701. Admissibility of evidence; out of court
statements; elder abuse.
(a) An out of court statement made by an eligible adult,
as defined in the Elder Abuse and Neglect Act, who has been
diagnosed by a physician to suffer from (i) any form of
dementia, developmental disability, or other form of mental
incapacity or (ii) any physical infirmity which prevents the
eligible adult's appearance in court, describing any act of
elder abuse, neglect, or financial exploitation, or testimony
by an eligible adult of an out of court statement made by the
eligible adult that he or she complained of such acts to
another, is admissible in any civil proceeding, if:
(1) the court conducts a hearing outside the
presence of the jury and finds that the time, content,
and circumstances of the statement provide sufficient
safeguards of reliability; and
(2) the eligible adult either:
(A) testifies at the proceeding; or
(B) is unavailable as a witness and there is
corroborative evidence of the act which is the
subject of the statement.
(b) If a statement is admitted pursuant to this Section,
the court shall instruct the jury that it is for the jury to
determine the weight and credibility to be given to the
statement and that, in making its determination, it shall
consider the condition of the eligible adult, the nature of
the statement, the circumstances under which the statement
was made, and any other relevant factors.
(c) The proponent of the statement shall give the
adverse party reasonable notice of an intention to offer the
statement and the particulars of the statement.
Section 25. The Probate Act of 1975 is amended by
changing Section 11a-10 as follows:
(755 ILCS 5/11a-10) (from Ch. 110 1/2, par. 11a-10)
Sec. 11a-10. Procedures preliminary to hearing.)
(a) Upon the filing of a petition pursuant to Section
11a-8, the court shall set a date and place for hearing to
take place within 30 days. The court shall appoint a
guardian ad litem to report to the court concerning the
respondent's best interests consistent with the provisions of
this Section, except that the appointment of a guardian ad
litem shall not be required when the court determines that
such appointment is not necessary for the protection of the
respondent or a reasonably informed decision on the petition.
If the guardian ad litem is not a licensed attorney, he or
she shall be qualified, by training or experience, to work
with or advocate for the developmentally disabled, mentally
ill, physically disabled, the elderly, or persons disabled
because of mental deterioration, depending on the type of
disability that is alleged in the petition. The court may
allow the guardian ad litem reasonable compensation. The
guardian ad litem may consult with a person who by training
or experience is qualified to work with persons with a
developmental disability, persons with mental illness, or
physically disabled persons, or persons disabled because of
mental deterioration, depending on the type of disability
that is alleged. The guardian ad litem shall personally
observe the respondent prior to the hearing and shall inform
him orally and in writing of the contents of the petition and
of his rights under Section 11a-11. The guardian ad litem
shall also attempt to elicit the respondent's position
concerning the adjudication of disability, the proposed
guardian, a proposed change in residential placement, changes
in care that might result from the guardianship, and other
areas of inquiry deemed appropriate by the court. At or
before the hearing, the guardian ad litem shall file a
written report detailing his or her observations of the
respondent, the responses of the respondent to any of the
inquires detailed in this Section, the opinion of the
guardian ad litem or other professionals with whom the
guardian ad litem consulted concerning the appropriateness of
guardianship, and any other material issue discovered by the
guardian ad litem. The guardian ad litem shall appear at the
hearing and testify as to any issues presented in his or her
report.
(b) The court (1) may appoint counsel for the
respondent, if the court finds that the interests of the
respondent will be best served by the appointment, and (2)
shall appoint counsel upon respondent's request or if the
respondent takes a position adverse to that of the guardian
ad litem. The respondent shall be permitted to obtain the
appointment of counsel either at the hearing or by any
written or oral request communicated to the court prior to
the hearing. The summons shall inform the respondent of this
right to obtain appointed counsel. The court may allow
counsel for the respondent reasonable compensation.
(c) If the respondent is unable to pay the fee of the
guardian ad litem or appointed counsel, or both, the court
may enter an order for the petitioner to pay all such fees or
such amounts as the respondent or the respondent's estate may
be unable to pay. However, in cases where the Office of State
Guardian is the petitioner, consistent with Section 30 of the
Guardianship and Advocacy Act, or where an elder abuse
provider agency is the petitioner, pursuant to Section 9 of
the Elder Abuse and Neglect Act, no guardian ad litem or
legal fees shall be assessed against the Office of State
Guardian or the elder abuse provider agency.
(d) The hearing may be held at such convenient place as
the court directs, including at a facility in which the
respondent resides.
(e) Unless he is the petitioner, the respondent shall be
personally served with a copy of the petition and a summons
not less than 14 days before the hearing. The summons shall
be printed in large, bold type and shall include the
following notice:
NOTICE OF RIGHTS OF RESPONDENT
You have been named as a respondent in a guardianship
petition asking that you be declared a disabled person. If
the court grants the petition, a guardian will be appointed
for you. A copy of the guardianship petition is attached for
your convenience.
The date and time of the hearing are:
The place where the hearing will occur is:
The Judge's name and phone number is:
If a guardian is appointed for you, the guardian may be
given the right to make all important personal decisions for
you, such as where you may live, what medical treatment you
may receive, what places you may visit, and who may visit
you. A guardian may also be given the right to control and
manage your money and other property, including your home, if
you own one. You may lose the right to make these decisions
for yourself.
You have the following legal rights:
(1) You have the right to be present at the court
hearing.
(2) You have the right to be represented by a
lawyer, either one that you retain, or one appointed by
the Judge.
(3) You have the right to ask for a jury of six
persons to hear your case.
(4) You have the right to present evidence to the
court and to confront and cross-examine witnesses.
(5) You have the right to ask the Judge to appoint
an independent expert to examine you and give an opinion
about your need for a guardian.
(6) You have the right to ask that the court
hearing be closed to the public.
(7) You have the right to tell the court whom you
prefer to have for your guardian.
You do not have to attend the court hearing if you do not
want to be there. If you do not attend, the Judge may
appoint a guardian if the Judge finds that a guardian would
be of benefit to you. The hearing will not be postponed or
canceled if you do not attend.
IT IS VERY IMPORTANT THAT YOU ATTEND THE HEARING IF YOU
DO NOT WANT A GUARDIAN OR IF YOU WANT SOMEONE OTHER THAN THE
PERSON NAMED IN THE GUARDIANSHIP PETITION TO BE YOUR
GUARDIAN. IF YOU DO NOT WANT A GUARDIAN OF IF YOU HAVE ANY
OTHER PROBLEMS, YOU SHOULD CONTACT AN ATTORNEY OR COME TO
COURT AND TELL THE JUDGE.
Service of summons and the petition may be made by a
private person 18 years of age or over who is not a party to
the action.
(f) Notice of the time and place of the hearing shall be
given by the petitioner by mail or in person to those
persons, including the proposed guardian, whose names and
addresses appear in the petition and who do not waive notice,
not less than 14 days before the hearing.
(Source: P.A. 88-380; 89-396, eff. 8-20-95.)