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Public Act 098-0562
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| SB1280 Enrolled | LRB098 08941 HEP 39073 b |
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AN ACT concerning civil law.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 5. The Illinois Power of Attorney Act is amended by |
changing Sections 2-7 and 2-10 as follows:
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(755 ILCS 45/2-7) (from Ch. 110 1/2, par. 802-7)
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Sec. 2-7. Duty - standard of care - record-keeping - |
exoneration. |
(a) The agent shall be under
no duty to exercise the powers |
granted by the agency or to assume control
of or responsibility |
for any of the principal's property, care or affairs,
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regardless of the principal's physical or mental condition. |
Whenever a
power is exercised, the agent shall act in good |
faith for the benefit of
the principal using due care, |
competence, and diligence in accordance with the terms of the |
agency and shall be
liable for negligent exercise. An agent who |
acts with due care for the
benefit of the principal shall not |
be liable or limited merely because the
agent also benefits |
from the act, has individual or conflicting interests
in |
relation to the property, care or affairs of the principal or |
acts in a
different manner with respect to the agency and the |
agent's individual
interests.
The agent shall not be
affected |
by any amendment or termination
of the agency until the agent |
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has actual knowledge thereof. The agent
shall not be liable for |
any loss due to error of judgment nor for the act
or default of |
any other person.
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(b) An agent that has accepted appointment must act in |
accordance with the principal's expectations to the extent |
actually known to the agent and otherwise in the principal's |
best interests. |
(c) An agent shall keep a record of all receipts, |
disbursements, and significant actions taken under the |
authority of the agency and shall provide a copy of this record |
when requested to do so by: |
(1) the principal, a guardian, another fiduciary |
acting on behalf of the principal, and, after the death of |
the principal, the personal representative or successors |
in interest of the principal's estate; |
(2) a representative of a provider agency, as defined |
in Section 2 of the Elder Abuse and Neglect Act, acting in |
the course of an assessment of a complaint of elder abuse |
or neglect under that Act; |
(3) a representative of the Office of the State Long |
Term Care Ombudsman, acting in the course of an |
investigation of a complaint of financial exploitation of a |
nursing home resident under Section 4.04 of the Illinois |
Act on the Aging; |
(4) a representative of the Office of Inspector General |
for the Department of Human Services, acting in the course |
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of an assessment of a complaint of financial exploitation |
of an adult with disabilities pursuant to Section 35 of the |
Abuse of Adults with Disabilities Intervention Act; or |
(5) a court under Section 2-10 of this Act; or . |
(6) a representative of the Office of State Guardian or |
public guardian for the county in which the principal |
resides acting in the course of investigating whether to |
file a petition for guardianship of the principal under |
Section 11a-4 or 11a-8 of the Probate Act of 1975. |
(d) If the agent fails to provide his or her record of all |
receipts, disbursements, and significant actions within 21 |
days after a request under subsection (c), the elder abuse |
provider agency, the State Guardian, the public guardian, or |
the State Long Term Care Ombudsman may petition the court for |
an order requiring the agent to produce his or her record of |
receipts, disbursements, and significant actions. If the court |
finds that the agent's failure to provide his or her record in |
a timely manner to the elder abuse provider agency, the State |
Guardian, the public guardian, or the State Long Term Care |
Ombudsman was without good cause, the court may assess |
reasonable costs and attorney's fees against the agent, and |
order such other relief as is appropriate. |
(e) An agent is not required to disclose receipts, |
disbursements, or other significant actions conducted on |
behalf of the principal except as otherwise provided in the |
power of attorney or as required under subsection (c). |
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(f) An agent that violates this Act is liable to the |
principal or the principal's successors in interest for the |
amount required (i) to restore the value of the principal's |
property to what it would have been had the violation not |
occurred, and (ii) to reimburse the principal or the |
principal's successors in interest for the attorney's fees and |
costs paid on the agent's behalf. This subsection does not |
limit any other applicable legal or equitable remedies. |
(Source: P.A. 96-1195, eff. 7-1-11.)
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(755 ILCS 45/2-10) (from Ch. 110 1/2, par. 802-10)
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Sec. 2-10. Agency-court relationship. |
(a) Upon petition by any interested
person (including the |
agent), with such notice to interested persons as the
court |
directs and a finding by the court that the principal
lacks |
either the capacity to control or the capacity to revoke the |
agency, the court may construe a power of attorney, review the |
agent's conduct, and grant appropriate relief including |
compensatory damages. |
(b) If the court finds
that the agent is not acting for the |
benefit of the principal in accordance
with the terms of the |
agency or that the agent's action or inaction has
caused or |
threatens substantial harm to the principal's person or |
property
in a manner not authorized or intended by the |
principal, the court may
order a guardian of the principal's |
person or estate to exercise any powers
of the principal under |
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the agency, including the power to revoke the
agency, or may |
enter such other orders without appointment of a guardian as
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the court deems necessary to provide for the best interests of |
the
principal. |
(c) If the court finds that the agency requires
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interpretation, the court may construe the agency and instruct |
the agent,
but the court may not amend the agency. |
(d) If the court finds that the agent has not acted for the |
benefit of the principal in accordance with the terms of the |
agency and the Illinois Power of Attorney Act, or that the |
agent's action caused or threatened substantial harm to the |
principal's person or property in a manner not authorized or |
intended by the principal, then the agent shall not be |
authorized to pay or be reimbursed from the estate of the |
principal the attorneys' fees and costs of the agent in |
defending a proceeding brought pursuant to this Section. |
(e) Upon a finding that the agent's action has caused |
substantial harm to the principal's person or property, the |
court may assess against the agent reasonable costs and |
attorney's fees to a prevailing party who is a provider agency |
as defined in Section 2 of the Elder Abuse and Neglect Act, a |
representative of the Office of the State Long Term Care |
Ombudsman, the State Guardian, a public guardian, or a |
governmental agency having regulatory authority to protect the |
welfare of the principal. |
(f) As used in this Section, the term "interested person" |
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includes (1) the principal or the agent; (2) a guardian of the |
person, guardian of the estate, or other fiduciary charged with |
management of the principal's property; (3) the principal's |
spouse, parent, or descendant; (4) a person who would be a |
presumptive heir-at-law of the principal; (5) a person named as |
a beneficiary to receive any property, benefit, or contractual |
right upon the principal's death, or as a beneficiary of a |
trust created by or for the principal; (6) a provider agency as |
defined in Section 2 of the Elder Abuse and Neglect Act, a |
representative of the Office of the State Long Term Care |
Ombudsman, the State Guardian, a public guardian, or a |
governmental agency having regulatory authority to protect the |
welfare of the principal; and (7) the principal's caregiver or |
another person who demonstrates sufficient interest in the |
principal's welfare. |
(g) Absent court order directing a
guardian to exercise |
powers of the principal under the agency, a guardian
will have |
no power, duty or liability with respect to any property |
subject
to the agency or any personal or health care matters |
covered by the agency. |
(h)
Proceedings under this Section shall be commenced in |
the county where the
guardian was appointed or, if no Illinois |
guardian is acting, then in the
county where the agent or |
principal resides or where the principal owns real property.
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(i) This Section shall not be construed to limit any other |
remedies available. |