Full Text of SB1280 98th General Assembly
SB1280eng 98TH GENERAL ASSEMBLY |
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| 1 | | AN ACT concerning civil law.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Illinois Power of Attorney Act is amended by | 5 | | changing 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 - | 8 | | exoneration. | 9 | | (a) The agent shall be under
no duty to exercise the powers | 10 | | granted by the agency or to assume control
of or responsibility | 11 | | for any of the principal's property, care or affairs,
| 12 | | regardless of the principal's physical or mental condition. | 13 | | Whenever a
power is exercised, the agent shall act in good | 14 | | faith for the benefit of
the principal using due care, | 15 | | competence, and diligence in accordance with the terms of the | 16 | | agency and shall be
liable for negligent exercise. An agent who | 17 | | acts with due care for the
benefit of the principal shall not | 18 | | be liable or limited merely because the
agent also benefits | 19 | | from the act, has individual or conflicting interests
in | 20 | | relation to the property, care or affairs of the principal or | 21 | | acts in a
different manner with respect to the agency and the | 22 | | agent's individual
interests.
The agent shall not be
affected | 23 | | by any amendment or termination
of the agency until the agent |
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| 1 | | has actual knowledge thereof. The agent
shall not be liable for | 2 | | any loss due to error of judgment nor for the act
or default of | 3 | | any other person.
| 4 | | (b) An agent that has accepted appointment must act in | 5 | | accordance with the principal's expectations to the extent | 6 | | actually known to the agent and otherwise in the principal's | 7 | | best interests. | 8 | | (c) An agent shall keep a record of all receipts, | 9 | | disbursements, and significant actions taken under the | 10 | | authority of the agency and shall provide a copy of this record | 11 | | when 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 | 11 | | receipts, disbursements, and significant actions within 21 | 12 | | days after a request under subsection (c), the elder abuse | 13 | | provider agency , the State Guardian, the public guardian, or | 14 | | the State Long Term Care Ombudsman may petition the court for | 15 | | an order requiring the agent to produce his or her record of | 16 | | receipts, disbursements, and significant actions. If the court | 17 | | finds that the agent's failure to provide his or her record in | 18 | | a timely manner to the elder abuse provider agency , the State | 19 | | Guardian, the public guardian, or the State Long Term Care | 20 | | Ombudsman was without good cause, the court may assess | 21 | | reasonable costs and attorney's fees against the agent, and | 22 | | order such other relief as is appropriate. | 23 | | (e) An agent is not required to disclose receipts, | 24 | | disbursements, or other significant actions conducted on | 25 | | behalf of the principal except as otherwise provided in the | 26 | | power of attorney or as required under subsection (c). |
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| 1 | | (f) An agent that violates this Act is liable to the | 2 | | principal or the principal's successors in interest for the | 3 | | amount required (i) to restore the value of the principal's | 4 | | property to what it would have been had the violation not | 5 | | occurred, and (ii) to reimburse the principal or the | 6 | | principal's successors in interest for the attorney's fees and | 7 | | costs paid on the agent's behalf. This subsection does not | 8 | | limit 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 | 13 | | agent), with such notice to interested persons as the
court | 14 | | directs and a finding by the court that the principal
lacks | 15 | | either the capacity to control or the capacity to revoke the | 16 | | agency, the court may construe a power of attorney, review the | 17 | | agent's conduct, and grant appropriate relief including | 18 | | compensatory damages. | 19 | | (b) If the court finds
that the agent is not acting for the | 20 | | benefit of the principal in accordance
with the terms of the | 21 | | agency or that the agent's action or inaction has
caused or | 22 | | threatens substantial harm to the principal's person or | 23 | | property
in a manner not authorized or intended by the | 24 | | principal, the court may
order a guardian of the principal's | 25 | | person or estate to exercise any powers
of the principal under |
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| 1 | | the agency, including the power to revoke the
agency, or may | 2 | | enter such other orders without appointment of a guardian as
| 3 | | the court deems necessary to provide for the best interests of | 4 | | the
principal. | 5 | | (c) If the court finds that the agency requires
| 6 | | interpretation, the court may construe the agency and instruct | 7 | | the agent,
but the court may not amend the agency. | 8 | | (d) If the court finds that the agent has not acted for the | 9 | | benefit of the principal in accordance with the terms of the | 10 | | agency and the Illinois Power of Attorney Act, or that the | 11 | | agent's action caused or threatened substantial harm to the | 12 | | principal's person or property in a manner not authorized or | 13 | | intended by the principal, then the agent shall not be | 14 | | authorized to pay or be reimbursed from the estate of the | 15 | | principal the attorneys' fees and costs of the agent in | 16 | | defending a proceeding brought pursuant to this Section. | 17 | | (e) Upon a finding that the agent's action has caused | 18 | | substantial harm to the principal's person or property, the | 19 | | court may assess against the agent reasonable costs and | 20 | | attorney's fees to a prevailing party who is a provider agency | 21 | | as defined in Section 2 of the Elder Abuse and Neglect Act, a | 22 | | representative of the Office of the State Long Term Care | 23 | | Ombudsman, the State Guardian, a public guardian, or a | 24 | | governmental agency having regulatory authority to protect the | 25 | | welfare of the principal. | 26 | | (f) As used in this Section, the term "interested person" |
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| 1 | | includes (1) the principal or the agent; (2) a guardian of the | 2 | | person, guardian of the estate, or other fiduciary charged with | 3 | | management of the principal's property; (3) the principal's | 4 | | spouse, parent, or descendant; (4) a person who would be a | 5 | | presumptive heir-at-law of the principal; (5) a person named as | 6 | | a beneficiary to receive any property, benefit, or contractual | 7 | | right upon the principal's death, or as a beneficiary of a | 8 | | trust created by or for the principal; (6) a provider agency as | 9 | | defined in Section 2 of the Elder Abuse and Neglect Act, a | 10 | | representative of the Office of the State Long Term Care | 11 | | Ombudsman, the State Guardian, a public guardian, or a | 12 | | governmental agency having regulatory authority to protect the | 13 | | welfare of the principal; and (7) the principal's caregiver or | 14 | | another person who demonstrates sufficient interest in the | 15 | | principal's welfare. | 16 | | (g) Absent court order directing a
guardian to exercise | 17 | | powers of the principal under the agency, a guardian
will have | 18 | | no power, duty or liability with respect to any property | 19 | | subject
to the agency or any personal or health care matters | 20 | | covered by the agency. | 21 | | (h)
Proceedings under this Section shall be commenced in | 22 | | the county where the
guardian was appointed or, if no Illinois | 23 | | guardian is acting, then in the
county where the agent or | 24 | | principal resides or where the principal owns real property.
| 25 | | (i) This Section shall not be construed to limit any other | 26 | | remedies 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 | 3 | | becoming law.
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