SB1280 EngrossedLRB098 08941 HEP 39073 b

1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Illinois Power of Attorney Act is amended by
5changing Sections 2-7 and 2-10 as follows:
 
6    (755 ILCS 45/2-7)  (from Ch. 110 1/2, par. 802-7)
7    Sec. 2-7. Duty - standard of care - record-keeping -
8exoneration.
9    (a) The agent shall be under no duty to exercise the powers
10granted by the agency or to assume control of or responsibility
11for any of the principal's property, care or affairs,
12regardless of the principal's physical or mental condition.
13Whenever a power is exercised, the agent shall act in good
14faith for the benefit of the principal using due care,
15competence, and diligence in accordance with the terms of the
16agency and shall be liable for negligent exercise. An agent who
17acts with due care for the benefit of the principal shall not
18be liable or limited merely because the agent also benefits
19from the act, has individual or conflicting interests in
20relation to the property, care or affairs of the principal or
21acts in a different manner with respect to the agency and the
22agent's individual interests. The agent shall not be affected
23by any amendment or termination of the agency until the agent

 

 

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1has actual knowledge thereof. The agent shall not be liable for
2any loss due to error of judgment nor for the act or default of
3any other person.
4    (b) An agent that has accepted appointment must act in
5accordance with the principal's expectations to the extent
6actually known to the agent and otherwise in the principal's
7best interests.
8    (c) An agent shall keep a record of all receipts,
9disbursements, and significant actions taken under the
10authority of the agency and shall provide a copy of this record
11when requested to do so by:
12        (1) the principal, a guardian, another fiduciary
13    acting on behalf of the principal, and, after the death of
14    the principal, the personal representative or successors
15    in interest of the principal's estate;
16        (2) a representative of a provider agency, as defined
17    in Section 2 of the Elder Abuse and Neglect Act, acting in
18    the course of an assessment of a complaint of elder abuse
19    or neglect under that Act;
20        (3) a representative of the Office of the State Long
21    Term Care Ombudsman, acting in the course of an
22    investigation of a complaint of financial exploitation of a
23    nursing home resident under Section 4.04 of the Illinois
24    Act on the Aging;
25        (4) a representative of the Office of Inspector General
26    for the Department of Human Services, acting in the course

 

 

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1    of an assessment of a complaint of financial exploitation
2    of an adult with disabilities pursuant to Section 35 of the
3    Abuse of Adults with Disabilities Intervention Act; or
4        (5) a court under Section 2-10 of this Act; or .
5        (6) a representative of the Office of State Guardian or
6    public guardian for the county in which the principal
7    resides acting in the course of investigating whether to
8    file a petition for guardianship of the principal under
9    Section 11a-4 or 11a-8 of the Probate Act of 1975.
10    (d) If the agent fails to provide his or her record of all
11receipts, disbursements, and significant actions within 21
12days after a request under subsection (c), the elder abuse
13provider agency, the State Guardian, the public guardian, or
14the State Long Term Care Ombudsman may petition the court for
15an order requiring the agent to produce his or her record of
16receipts, disbursements, and significant actions. If the court
17finds that the agent's failure to provide his or her record in
18a timely manner to the elder abuse provider agency, the State
19Guardian, the public guardian, or the State Long Term Care
20Ombudsman was without good cause, the court may assess
21reasonable costs and attorney's fees against the agent, and
22order such other relief as is appropriate.
23    (e) An agent is not required to disclose receipts,
24disbursements, or other significant actions conducted on
25behalf of the principal except as otherwise provided in the
26power of attorney or as required under subsection (c).

 

 

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1    (f) An agent that violates this Act is liable to the
2principal or the principal's successors in interest for the
3amount required (i) to restore the value of the principal's
4property to what it would have been had the violation not
5occurred, and (ii) to reimburse the principal or the
6principal's successors in interest for the attorney's fees and
7costs paid on the agent's behalf. This subsection does not
8limit any other applicable legal or equitable remedies.
9(Source: P.A. 96-1195, eff. 7-1-11.)
 
10    (755 ILCS 45/2-10)  (from Ch. 110 1/2, par. 802-10)
11    Sec. 2-10. Agency-court relationship.
12    (a) Upon petition by any interested person (including the
13agent), with such notice to interested persons as the court
14directs and a finding by the court that the principal lacks
15either the capacity to control or the capacity to revoke the
16agency, the court may construe a power of attorney, review the
17agent's conduct, and grant appropriate relief including
18compensatory damages.
19    (b) If the court finds that the agent is not acting for the
20benefit of the principal in accordance with the terms of the
21agency or that the agent's action or inaction has caused or
22threatens substantial harm to the principal's person or
23property in a manner not authorized or intended by the
24principal, the court may order a guardian of the principal's
25person or estate to exercise any powers of the principal under

 

 

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1the agency, including the power to revoke the agency, or may
2enter such other orders without appointment of a guardian as
3the court deems necessary to provide for the best interests of
4the principal.
5    (c) If the court finds that the agency requires
6interpretation, the court may construe the agency and instruct
7the agent, but the court may not amend the agency.
8    (d) If the court finds that the agent has not acted for the
9benefit of the principal in accordance with the terms of the
10agency and the Illinois Power of Attorney Act, or that the
11agent's action caused or threatened substantial harm to the
12principal's person or property in a manner not authorized or
13intended by the principal, then the agent shall not be
14authorized to pay or be reimbursed from the estate of the
15principal the attorneys' fees and costs of the agent in
16defending a proceeding brought pursuant to this Section.
17    (e) Upon a finding that the agent's action has caused
18substantial harm to the principal's person or property, the
19court may assess against the agent reasonable costs and
20attorney's fees to a prevailing party who is a provider agency
21as defined in Section 2 of the Elder Abuse and Neglect Act, a
22representative of the Office of the State Long Term Care
23Ombudsman, the State Guardian, a public guardian, or a
24governmental agency having regulatory authority to protect the
25welfare of the principal.
26    (f) As used in this Section, the term "interested person"

 

 

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1includes (1) the principal or the agent; (2) a guardian of the
2person, guardian of the estate, or other fiduciary charged with
3management of the principal's property; (3) the principal's
4spouse, parent, or descendant; (4) a person who would be a
5presumptive heir-at-law of the principal; (5) a person named as
6a beneficiary to receive any property, benefit, or contractual
7right upon the principal's death, or as a beneficiary of a
8trust created by or for the principal; (6) a provider agency as
9defined in Section 2 of the Elder Abuse and Neglect Act, a
10representative of the Office of the State Long Term Care
11Ombudsman, the State Guardian, a public guardian, or a
12governmental agency having regulatory authority to protect the
13welfare of the principal; and (7) the principal's caregiver or
14another person who demonstrates sufficient interest in the
15principal's welfare.
16    (g) Absent court order directing a guardian to exercise
17powers of the principal under the agency, a guardian will have
18no power, duty or liability with respect to any property
19subject to the agency or any personal or health care matters
20covered by the agency.
21    (h) Proceedings under this Section shall be commenced in
22the county where the guardian was appointed or, if no Illinois
23guardian is acting, then in the county where the agent or
24principal resides or where the principal owns real property.
25    (i) This Section shall not be construed to limit any other
26remedies available.

 

 

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1(Source: P.A. 96-1195, eff. 7-1-11.)
 
2    Section 99. Effective date. This Act takes effect upon
3becoming law.