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90_SB1835eng
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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
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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.
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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, or neglected, 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
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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
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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, or neglect, or financial exploitation.
34 (i) "Regional administrative agency" means any public or
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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, or neglect, or financial
10 exploitation in which a provider agency, after assessment,
11 determines that there is reason to believe abuse, or neglect,
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
19 elder abuse, or neglect, or financial exploitation. The
20 Department shall contract with or fund or, contract with and
21 fund, regional administrative agencies, or provider 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 assistance services pursuant 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
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1 shall include but not be limited to receiving reports of
2 alleged or suspected abuse, or neglect, 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
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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 the wishing to report a case
7 of alleged or suspected abuse, or neglect, or financial
8 exploitation of an eligible adult may make such a report 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
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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 adult patient which 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
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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
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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, or neglect, 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
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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 to not less than one 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, and neglect, 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, or neglect, 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, or neglect, 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
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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, or neglected, 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, or
8 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 the such court.
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, or neglect, 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.)
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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 a temporary guardian 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 order an order of protection under the Illinois Domestic
23 Violence Act of 1986 seeking 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, or neglect, or financial
33 exploitation occurred, authorizing an assessment of a report
34 of alleged or suspected abuse, or neglect, or financial
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1 exploitation or and the 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 270 90 days
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
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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,
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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
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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
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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
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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
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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
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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.
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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.)