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90_SB1835sam001
SRS90SB1835JJawam01
1 AMENDMENT TO SENATE BILL 1835
2 AMENDMENT NO. . Amend Senate Bill 1835 by replacing
3 the title with the following:
4 "AN ACT regarding elder abuse, amending named Acts."; and
5 by replacing everything after the enacting clause with the
6 following:
7 "Section 5. The Elder Abuse and Neglect Act is amended
8 by changing Sections 2, 3, 4, 5, 7, 8, 9, and 11, and by
9 adding Sections 3.5, 4.1, 4.2, and 13 as follows:
10 (320 ILCS 20/2) (from Ch. 23, par. 6602)
11 Sec. 2. Definitions. As used in this Act, unless the
12 context requires otherwise:
13 (a) "Abuse" means causing any physical, mental or sexual
14 injury to an eligible adult, including exploitation of such
15 adult's financial resources.
16 Nothing in this Act shall be construed to mean that an
17 eligible adult is a victim of abuse or neglect for the sole
18 reason that he or she is being furnished with or relies upon
19 treatment by spiritual means through prayer alone, in
20 accordance with the tenets and practices of a recognized
21 church or religious denomination.
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1 Nothing in this Act shall be construed to mean that an
2 eligible adult is a victim of abuse because of health care
3 services provided or not provided by health care
4 professionals.
5 (a-5) "Abuser" means a person who abuses, neglects, or
6 financially exploits an eligible adult.
7 (a-7) "Caregiver" means a person who either as a result
8 of a family relationship, voluntarily, or in exchange for
9 compensation has assumed responsibility for all or a portion
10 of the care of an eligible adult who needs assistance with
11 activities of daily living.
12 (b) "Department" means the Department on Aging of the
13 State of Illinois.
14 (c) "Director" means the Director of the Department.
15 (d) "Domestic living situation" means a residence where
16 the eligible adult lives alone or with his or her family or a
17 caretaker, or others, or a board and care home or other
18 community-based unlicensed facility, but is not:
19 (1) A licensed facility as defined in Section
20 1-113 of the Nursing Home Care Act;
21 (2) A "life care facility" as defined in the Life
22 Care Facilities Act;
23 (3) A home, institution, or other place operated by
24 the federal government or agency thereof or by the State
25 of Illinois;
26 (4) A hospital, sanitarium, or other institution,
27 the principal activity or business of which is the
28 diagnosis, care, and treatment of human illness through
29 the maintenance and operation of organized facilities
30 therefor, which is required to be licensed under the
31 Hospital Licensing Act;
32 (5) A "community living facility" as defined in the
33 Community Living Facilities Licensing Act;
34 (6) A "community residential alternative" as
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1 defined in the Community Residential Alternatives
2 Licensing Act; and
3 (7) A "community-integrated living arrangement" as
4 defined in the Community-Integrated Living Arrangements
5 Licensure and Certification Act.
6 (e) "Eligible adult" means a person 60 years of age or
7 older who resides in a domestic setting and is, or is alleged
8 to be, abused, or neglected, or financially exploited by
9 another individual.
10 (f) "Emergency" means a situation in which an eligible
11 adult is living in conditions presenting a risk of death or
12 physical, mental or sexual injury and the provider agency has
13 reason to believe the eligible adult is unable to consent to
14 services which would alleviate that risk.
15 (f-5) "Mandated reporter" or "reporter" means any of the
16 following persons while engaged in carrying out their
17 professional duties:
18 (1) a professional or professional's delegate while
19 engaged in: (i) social services, (ii) law enforcement,
20 (iii) education, (iv) the care of an eligible adult or
21 eligible adults, or (v) any of the occupations required
22 to be licensed under the Clinical Psychologist Licensing
23 Act, the Clinical Social Work and Social Work Practice
24 Act, the Illinois Dental Practice Act, the Dietetic and
25 Nutrition Services Practice Act, the Marriage and Family
26 Therapy Licensing Act, the Medical Practice Act of 1987,
27 the Naprapathic Practice Act, the Illinois Nursing Act of
28 1987, the Nursing Home Administrators Licensing and
29 Disciplinary Act, the Illinois Occupational Therapy
30 Practice Act, the Illinois Optometric Practice Act of
31 1987, the Pharmacy Practice Act of 1987, the Illinois
32 Physical Therapy Act, the Physician Assistant Practice
33 Act of 1987, the Podiatric Medical Practice Act of 1987,
34 the Professional Counselor and Clinical Professional
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1 Counselor Licensing Act, the Illinois Speech-Language
2 Pathology and Audiology Practice Act, the Veterinary
3 Medicine and Surgery Practice Act of 1994, and the
4 Illinois Public Accounting Act;
5 (2) an employee of a vocational rehabilitation
6 facility prescribed or supervised by the Department of
7 Human Services;
8 (3) an administrator, employee, or person providing
9 services in or through an unlicensed community based
10 facility;
11 (4) a Christian Science Practitioner;
12 (5) field personnel of the Department of Public
13 Aid, Department of Public Health, and Department of Human
14 Services, and any county or municipal health department;
15 (6) personnel of the Department of Human Services,
16 the Guardianship and Advocacy Commission, the State Fire
17 Marshal, local fire departments, the Department on Aging
18 and its subsidiary Area Agencies on Aging and provider
19 agencies, and the Office of State Long Term Care
20 Ombudsman;
21 (7) any employee of the State of Illinois not
22 otherwise specified herein who is involved in providing
23 services to eligible adults, including professionals
24 providing medical or rehabilitation services and all
25 other persons having direct contact with eligible adults;
26 (8) any employee of a "financial institution" as
27 defined in Section 1 of the Consumer Deposit Account Act;
28 (9) any person acting as a dealer, salesperson, or
29 investment adviser as those terms are defined in the
30 Illinois Securities Law of 1953; or
31 (10) a person who performs the duties of a coroner
32 or medical examiner.
33 (g) "Neglect" means another individual's failure to
34 provide an eligible adult with or willful withholding from an
-5- SRS90SB1835JJawam01
1 eligible adult the necessities of life including, but not
2 limited to, food, clothing, shelter or medical care. This
3 subsection does not create any new affirmative duty to
4 provide support to eligible adults. Nothing in this Act
5 shall be construed to mean that an eligible adult is a victim
6 of neglect because of health care services provided or not
7 provided by health care professionals.
8 (h) "Provider agency" means any public or nonprofit
9 agency in a planning and service area appointed by the
10 regional administrative agency with prior approval by the
11 Department on Aging to receive and assess reports of alleged
12 or suspected abuse, or neglect, or financial exploitation.
13 (i) "Regional administrative agency" means any public or
14 nonprofit agency in a planning and service area so designated
15 by the Department, provided that the designated Area Agency
16 on Aging shall be designated the regional administrative
17 agency if it so requests. The Department shall assume the
18 functions of the regional administrative agency for any
19 planning and service area where another agency is not so
20 designated.
21 (j) "Substantiated case" means a reported case of
22 alleged or suspected abuse, or neglect, or financial
23 exploitation in which a provider agency, after assessment,
24 determines that there is reason to believe abuse, or neglect,
25 or financial exploitation has occurred.
26 (Source: P.A. 86-820; 87-264.)
27 (320 ILCS 20/3) (from Ch. 23, par. 6603)
28 Sec. 3. Responsibilities.
29 (a) The Department shall establish, design and manage a
30 program of response and services for persons 60 years of age
31 and older who have been, or are alleged to be, victims of
32 elder abuse, or neglect, or financial exploitation. The
33 Department shall contract with or fund or, contract with and
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1 fund, regional administrative agencies, or provider agencies,
2 or both, for the provision of those functions, and,
3 contingent on adequate funding, with attorneys or legal
4 services provider agencies for the provision of legal
5 assistance services pursuant to this Act.
6 (b) Each regional administrative agency shall designate
7 provider agencies within its planning and service area with
8 prior approval by the Department on Aging, monitor the use of
9 services, provide technical assistance to the provider
10 agencies and be involved in program development activities.
11 (c) Provider agencies shall assist, to the extent
12 possible, eligible adults who need agency services to allow
13 them to continue to function independently. Such assistance
14 shall include but not be limited to receiving reports of
15 alleged or suspected abuse, or neglect, or financial
16 exploitation, conducting face-to-face assessments of such
17 reported cases, determination of substantiated cases,
18 referral of substantiated cases for necessary support
19 services, referral of criminal conduct to law enforcement in
20 accordance with Department guidelines, and provision of case
21 work and follow-up services on substantiated cases.
22 (Source: P.A. 85-1184.)
23 (320 ILCS 20/3.5 new)
24 Sec. 3.5. Other Responsibilities. The Department shall
25 also be responsible for the following activities, contingent
26 upon adequate funding:
27 (a) promotion of a wide range of endeavors for the
28 purpose of preventing elder abuse, neglect, and financial
29 exploitation in both domestic and institutional settings,
30 including, but not limited to, promotion of public and
31 professional education to increase awareness of elder abuse,
32 neglect, and financial exploitation, to increase reports, and
33 to improve response by various legal, social, and health
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1 systems;
2 (b) coordination of efforts with other agencies,
3 councils, and like entities, to include but not be limited
4 to, the Office of the Attorney General, the State Police, the
5 Law Enforcement Training and Standards Board, the State
6 Triad, the Criminal Justice Information Authority, the
7 Departments of Public Health, Public Aid, and Human Services,
8 the Family Violence Coordinating Council, the Violence
9 Prevention Authority, and other entities which may impact
10 awareness of, and response to, elder abuse, neglect, and
11 financial exploitation;
12 (c) collection and analysis of data;
13 (d) monitoring of the performance of regional
14 administrative agencies and elder abuse provider agencies;
15 and
16 (e) promotion of prevention activities.
17 (320 ILCS 20/4) (from Ch. 23, par. 6604)
18 Sec. 4. Reports of abuse or neglect.
19 (a) Any person who suspects the wishing to report a case
20 of alleged or suspected abuse, or neglect, or financial
21 exploitation of an eligible adult may make such a report this
22 suspicion to an agency designated to receive such reports
23 under this Act or to the Department.
24 (a-5) If any mandated reporter has reason to believe
25 that an eligible adult, who because of dysfunction is unable
26 to seek assistance for himself or herself, has, within the
27 previous 12 months, been subjected to abuse, neglect, or
28 financial exploitation, the mandated reporter shall, within
29 24 hours after developing such belief, report this suspicion
30 to an agency designated to receive such reports under this
31 Act or to the Department. Whenever a mandated reporter is
32 required to report under this Act in his or her capacity as a
33 member of the staff of a medical or other public or private
-8- SRS90SB1835JJawam01
1 institution, facility, board and care home, or agency, he or
2 she shall make a report to an agency designated to receive
3 such reports under this Act or to the Department in
4 accordance with the provisions of this Act and may also
5 notify the person in charge of the institution, facility,
6 board and care home, or agency or his or her designated agent
7 that the report has been made. Under no circumstances shall
8 any person in charge of such institution, facility, board and
9 care home, or agency, or his or her designated agent to whom
10 the notification has been made, exercise any control,
11 restraint, modification, or other change in the report or the
12 forwarding of the report to an agency designated to receive
13 such reports under this Act or to the Department. The
14 privileged quality of communication between any professional
15 person required to report and his or her patient or client
16 shall not apply to situations involving abused, neglected, or
17 financially exploited eligible adults and shall not
18 constitute grounds for failure to report as required by this
19 Act.
20 (a-7) A person making a report under this Act in the
21 belief that it is in the alleged victim's best interest shall
22 be immune from criminal or civil liability or professional
23 disciplinary action on account of making the report,
24 notwithstanding any requirements concerning the
25 confidentiality of information with respect to such eligible
26 adult patient which might otherwise be applicable.
27 (a-9) Law enforcement officers shall continue to report
28 incidents of alleged abuse pursuant to the Illinois Domestic
29 Violence Act of 1986, notwithstanding any requirements under
30 this Act.
31 (b) Any person, institution or agency participating in
32 the making of a report, providing information or records
33 related to a report, assessment, or services, or
34 participating in the investigation of a report under this Act
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1 in good faith, or taking photographs or x-rays as a result of
2 an authorized assessment, shall have immunity from any civil,
3 criminal or other liability in any civil, criminal or other
4 proceeding brought in consequence of making such report or
5 assessment or on account of submitting or otherwise
6 disclosing such photographs or x-rays to any agency
7 designated to receive reports of alleged or suspected abuse
8 or neglect. Any person, institution or agency authorized by
9 the Department to provide assessment, intervention, or
10 administrative services under this Act shall, in the good
11 faith performance of those services, have immunity from any
12 civil, criminal or other liability in any civil, criminal, or
13 other proceeding brought as a consequence of the performance
14 of those services. For the purposes of any civil, criminal,
15 or other proceeding, the good faith of any person required to
16 report, permitted to report, or participating in an
17 investigation of a report of alleged or suspected abuse,
18 neglect, or financial exploitation shall be presumed.
19 (c) The identity of a person making a report of alleged
20 or suspected abuse or neglect under this Act may be disclosed
21 by the Department or other agency provided for in this Act
22 only with such person's written consent or by court order.
23 (d) The Department shall by rule establish a system for
24 filing and compiling reports made under this Act.
25 (Source: P.A. 87-264; 87-435.)
26 (320 ILCS 20/4.1 new)
27 Sec. 4.1. Employer discrimination. No employer shall
28 discharge, demote or suspend, or threaten to discharge,
29 demote or suspend, or in any manner discriminate against any
30 employee who makes any good faith oral or written report of
31 suspected elder abuse, neglect, or financial exploitation or
32 who is or will be a witness or testify in any investigation
33 or proceeding concerning a report of suspected elder abuse,
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1 neglect, or financial exploitation.
2 (320 ILCS 20/4.2 new)
3 Sec. 4.2. Any person who makes a report or who
4 investigates a report under this Act shall testify fully in
5 any judicial proceeding resulting from such report, as to any
6 evidence of abuse, neglect, or financial exploitation or the
7 cause thereof. Any person who is required to report a
8 suspected case of abuse, neglect, or financial exploitation
9 under Section 4 of this Act shall testify fully in any
10 administrative hearing resulting from such report, as to any
11 evidence of abuse, neglect, or financial exploitation or the
12 cause thereof. No evidence shall be excluded by reason of
13 any common law or statutory privilege relating to
14 communications between the alleged abuser or the eligible
15 adult subject of the report under this Act and the person
16 making or investigating the report.
17 (320 ILCS 20/5) (from Ch. 23, par. 6605)
18 Sec. 5. Procedure.
19 (a) A provider agency designated to receive reports of
20 alleged or suspected abuse, or neglect, or financial
21 exploitation under this Act shall, upon receiving such a
22 report, conduct a face-to-face assessment with respect to
23 such report. The assessment shall include, but not be
24 limited to, a visit to the residence of the eligible adult
25 who is the subject of the report and may include interviews
26 or consultations with service agencies or individuals who may
27 have knowledge of the eligible adult's circumstances. If,
28 after the assessment, the provider agency determines that the
29 case is substantiated it shall develop a service care plan
30 for the eligible adult. In developing the plan, the provider
31 agency may consult with any other appropriate provider of
32 services, and such providers shall be immune from civil or
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1 criminal liability on account of such acts. The plan shall
2 include alternative suggested or recommended services which
3 are appropriate to the needs of the eligible adult and which
4 involve the least restriction of the eligible adult's
5 activities commensurate with his or her needs. Only those
6 services to which consent is provided in accordance with
7 Section 9 of this Act shall be provided, contingent upon the
8 availability of such services.
9 (b) A provider agency shall refer evidence of crimes
10 against an eligible adult to the appropriate law enforcement
11 agency according to Department policies. A referral to law
12 enforcement may be made at intake or any time during the
13 case. Where a provider agency has reason to believe the
14 death of an eligible adult may be the result of abuse or
15 neglect, the agency shall immediately report the matter to
16 the coroner or medical examiner and shall cooperate fully
17 with any subsequent investigation.
18 (Source: P.A. 85-1184.)
19 (320 ILCS 20/7) (from Ch. 23, par. 6607)
20 Sec. 7. Review. All services provided to an eligible
21 adult shall be reviewed by the provider agency on at least a
22 quarterly basis for up to not less than one year to determine
23 whether the service care plan should be continued or
24 modified.
25 (Source: P.A. 85-1184.)
26 (320 ILCS 20/8) (from Ch. 23, par. 6608)
27 Sec. 8. Access to records. All records concerning
28 reports of elder abuse, and neglect, and financial
29 exploitation and all records generated as a result of such
30 reports shall be confidential and shall not be disclosed
31 except as specifically authorized by this Act or other
32 applicable law. Access to such records, but not access to
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1 the identity of the person or persons making a report of
2 alleged abuse, or neglect, or financial exploitation as
3 contained in such records, shall be allowed to the following
4 persons and for the following persons:
5 (1) (a) Department staff, provider agency staff, other
6 aging network staff, and regional administrative agency staff
7 in the furtherance of their responsibilities under this Act;
8 (2) (b) A law enforcement agency investigating known or
9 suspected elder abuse, or neglect, or financial exploitation.
10 Where a provider agency has reason to believe that the death
11 of an eligible adult may be the result of abuse or neglect,
12 the agency shall immediately provide the appropriate law
13 enforcement agency with all records pertaining to the
14 eligible adult;
15 (3) (c) A physician who has before him or her or who is
16 involved in the treatment of an eligible adult whom he or she
17 reasonably suspects may be abused, or neglected, or
18 financially exploited or who has been referred to the Elder
19 Abuse and Neglect Program;
20 (4) (d) An eligible adult reported to be abused, or
21 neglected, or financially exploited, or such adult's guardian
22 unless such guardian is the abuser or the alleged abuser;
23 (5) (e) A court or a guardian ad litem, upon its or his
24 or her finding that access to such records may be necessary
25 for the determination of an issue before the such court.
26 However, such access shall be limited to an in camera
27 inspection of the records, unless the court determines that
28 disclosure of the information contained therein is necessary
29 for the resolution of an issue then pending before it;
30 (6) (f) A grand jury, upon its determination that access
31 to such records is necessary in the conduct of its official
32 business;
33 (7) (g) Any person authorized by the Director, in
34 writing, for audit or bona fide research purposes;
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1 (8) (h) A coroner or medical examiner who has reason to
2 believe that an eligible adult has died as the result of
3 abuse, or neglect, or financial exploitation. The provider
4 agency shall immediately provide the coroner or medical
5 examiner with all records pertaining to the eligible adult;
6 and
7 (9) (i) Department of Professional Regulation staff and
8 members of the Social Work Examining and Disciplinary Board
9 in the course of investigating alleged violations of the
10 Clinical Social Work and Social Work Practice Act by provider
11 agency staff.
12 (Source: P.A. 89-387, eff. 8-20-95.)
13 (320 ILCS 20/9) (from Ch. 23, par. 6609)
14 Sec. 9. Authority to consent to services. (a) If an
15 eligible adult consents to services being provided according
16 to the service care plan, such services shall be arranged to
17 meet the adult's needs, based upon the availability of
18 resources to provide such services. If an adult withdraws
19 his or her consent or refuses to accept such services, the
20 services shall not be provided.
21 (b) If it reasonably appears to the Department or other
22 agency designated under this Act that a person is an eligible
23 adult and lacks the capacity to consent to necessary
24 services, including an assessment, the Department or other
25 agency may seek the appointment of a temporary guardian as
26 provided in Article XIa of the Probate Act of 1975 for the
27 purpose of consenting to such services.
28 (c) A guardian of the person of an eligible adult may
29 consent to services being provided according to the service
30 care plan. If a guardian withdraws his or her consent or
31 refuses to allow services to be provided to the eligible
32 adult, the Department, an agency designated under this Act,
33 or the office of the Attorney General may request a court
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1 order an order of protection under the Illinois Domestic
2 Violence Act of 1986 seeking appropriate remedies, and may in
3 addition request removal of the guardian and appointment of a
4 successor guardian.
5 (d) If an emergency exists and the Department or other
6 agency designated under this Act reasonably believes that a
7 person is an eligible adult and lacks the capacity to consent
8 to necessary services, the Department or other agency may
9 request an ex parte order from the circuit court of the
10 county in which the petitioner or respondent resides or in
11 which the alleged abuse, or neglect, or financial
12 exploitation occurred, authorizing an assessment of a report
13 of alleged or suspected abuse, or neglect, or financial
14 exploitation or and the provision of necessary services, or
15 both, including relief available under the Illinois Domestic
16 Violence Act of 1986. Petitions filed under this subsection
17 shall be treated as expedited proceedings.
18 (e) Within 15 days after the entry of the ex parte
19 emergency order, the order shall expire, or, if the need for
20 assessment or services continues, the provider agency shall
21 petition for the appointment of a guardian as provided in
22 Article XIa of the Probate Act of 1975 for the purpose of
23 consenting to such assessment or services or to protect the
24 eligible adult from further harm.
25 (Source: P.A. 85-1184.)
26 (320 ILCS 20/11) (from Ch. 23, par. 6611)
27 Sec. 11. Annual Reports. The Department shall file with
28 the Governor and the General Assembly, within 270 90 days
29 after the end of each fiscal year, a report concerning its
30 implementation of this Act during such fiscal year, together
31 with any recommendations for future implementation.
32 (Source: P.A. 85-1184.)
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1 (320 ILCS 20/13 new)
2 Sec. 13. Access.
3 (a) The designated provider agencies shall have access
4 to eligible adults who have been reported or found to be
5 victims of abuse, neglect, or financial exploitation in order
6 to assess the validity of the report, assess other needs of
7 the eligible adult, and provide services in accordance with
8 this Act.
9 (b) Where access to an eligible adult is denied, the
10 Office of the Attorney General, the Department, or the
11 provider agency may petition the court for an order to
12 require appropriate access where:
13 (1) a caregiver or third party has interfered with
14 the assessment or service plan, or
15 (2) the agency has reason to believe that the
16 eligible adult is denying access because of coercion,
17 extortion, or justifiable fear of future abuse, neglect,
18 or financial exploitation.
19 (c) The petition for an order requiring appropriate
20 access shall be afforded an expedited hearing in the circuit
21 court.
22 (d) If the elder abuse provider agency has substantiated
23 financial exploitation against an eligible adult, and has
24 documented a reasonable belief that the eligible adult will
25 be irreparably harmed as a result of the financial
26 exploitation, the Office of the Attorney General, the
27 Department, or the provider agency may petition for an order
28 freezing the assets of the eligible adult. The petition shall
29 be filed in the county or counties in which the assets are
30 located. The court's order shall prohibit the sale, gifting,
31 transfer, or wasting of the assets of the eligible adult,
32 both real and personal, owned by, or vested in, the eligible
33 adult, without the express permission of the court. The
34 petition to freeze the assets of the eligible adult shall be
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1 afforded an expedited hearing in the circuit court.
2 (320 ILCS 20/12 rep.)
3 Section 10. The Elder Abuse and Neglect Act is amended
4 by repealing Section 12.
5 Section 15. The Code of Criminal Procedure of 1963 is
6 amended by adding Section 115-10.3 as follows:
7 (725 ILCS 5/115-10.3 new)
8 Sec. 115-10.3. Hearsay exception regarding elder adults.
9 (a) In a prosecution for abuse, neglect, or financial
10 exploitation perpetrated upon or against an eligible adult,
11 as defined in the Elder Abuse and Neglect Act, who at the
12 time the act was committed has been diagnosed by a physician
13 to suffer from (i) any form of dementia, developmental
14 disability, or other form of mental incapacity or (ii) any
15 physical infirmity which prevents the eligible adult's
16 appearance in court, including but not limited to
17 prosecutions for violations of Sections 10-1, 10-2, 10-3,
18 10-3.1, 10-4, 11-11, 12-1, 12-2, 12-3, 12-3.2, 12-4, 12-4.1,
19 12-4.2, 12-4.5, 12-4.6, 12-4.7, 12-5, 12-6, 12-7.3, 12-7.4,
20 12-11, 12-13, 12-14, 12-15, 12-16, 12-21, 16-1, 16-1.3, and
21 17-3 of the Criminal Code of 1961, the following evidence
22 shall be admitted as an exception to the hearsay rule:
23 (1) testimony by an eligible adult, of an out of
24 court statement made by the eligible adult, that he or
25 she complained of such act to another; and
26 (2) testimony of an out of court statement made by
27 the eligible adult, describing any complaint of such act
28 or matter or detail pertaining to any act which is an
29 element of an offense which is the subject of a
30 prosecution for abuse, neglect, or financial exploitation
31 perpetrated upon or against the eligible adult.
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1 (b) Such testimony shall only be admitted if:
2 (1) The court finds in a hearing conducted outside
3 the presence of the jury that the time, content, and
4 circumstances of the statement provide sufficient
5 safeguards of reliability; and
6 (2) The eligible adult either:
7 (A) testifies at the proceeding; or
8 (B) is unavailable as a witness and there is
9 corroborative evidence of the act which is the
10 subject of the statement.
11 (c) If a statement is admitted pursuant to this Section,
12 the court shall instruct the jury that it is for the jury to
13 determine the weight and credibility to be given the
14 statement and that, in making the determination, it shall
15 consider the condition of the eligible adult, the nature of
16 the statement, the circumstances under which the statement
17 was made, and any other relevant factor.
18 (d) The proponent of the statement shall give the
19 adverse party reasonable notice of his or her intention to
20 offer the statement and the particulars of the statement.
21 Section 20. The Code of Civil Procedure is amended by
22 adding Part 27 to Article VIII as follows:
23 (735 ILCS 5/Art. VIII, Part 27 heading new)
24 PART 27. ELDER ADULTS
25 (735 ILCS 5/8-2701 new)
26 Sec. 8-2701. Admissibility of evidence; out of court
27 statements; elder abuse.
28 (a) An out of court statement made by an eligible adult,
29 as defined in the Elder Abuse and Neglect Act, who has been
30 diagnosed by a physician to suffer from (i) any form of
31 dementia, developmental disability, or other form of mental
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1 incapacity or (ii) any physical infirmity which prevents the
2 eligible adult's appearance in court, describing any act of
3 elder abuse, neglect, or financial exploitation, or testimony
4 by an eligible adult of an out of court statement made by the
5 eligible adult that he or she complained of such acts to
6 another, is admissible in any civil proceeding, if:
7 (1) the court conducts a hearing outside the
8 presence of the jury and finds that the time, content,
9 and circumstances of the statement provide sufficient
10 safeguards of reliability; and
11 (2) the eligible adult either:
12 (A) testifies at the proceeding; or
13 (B) is unavailable as a witness and there is
14 corroborative evidence of the act which is the
15 subject of the statement.
16 (b) If a statement is admitted pursuant to this Section,
17 the court shall instruct the jury that it is for the jury to
18 determine the weight and credibility to be given to the
19 statement and that, in making its determination, it shall
20 consider the condition of the eligible adult, the nature of
21 the statement, the circumstances under which the statement
22 was made, and any other relevant factors.
23 (c) The proponent of the statement shall give the
24 adverse party reasonable notice of an intention to offer the
25 statement and the particulars of the statement.
26 Section 25. The Probate Act of 1975 is amended by
27 changing Section 11a-10 as follows:
28 (755 ILCS 5/11a-10) (from Ch. 110 1/2, par. 11a-10)
29 Sec. 11a-10. Procedures preliminary to hearing.)
30 (a) Upon the filing of a petition pursuant to Section
31 11a-8, the court shall set a date and place for hearing to
32 take place within 30 days. The court shall appoint a
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1 guardian ad litem to report to the court concerning the
2 respondent's best interests consistent with the provisions of
3 this Section, except that the appointment of a guardian ad
4 litem shall not be required when the court determines that
5 such appointment is not necessary for the protection of the
6 respondent or a reasonably informed decision on the petition.
7 If the guardian ad litem is not a licensed attorney, he or
8 she shall be qualified, by training or experience, to work
9 with or advocate for the developmentally disabled, mentally
10 ill, physically disabled, the elderly, or persons disabled
11 because of mental deterioration, depending on the type of
12 disability that is alleged in the petition. The court may
13 allow the guardian ad litem reasonable compensation. The
14 guardian ad litem may consult with a person who by training
15 or experience is qualified to work with persons with a
16 developmental disability, persons with mental illness, or
17 physically disabled persons, or persons disabled because of
18 mental deterioration, depending on the type of disability
19 that is alleged. The guardian ad litem shall personally
20 observe the respondent prior to the hearing and shall inform
21 him orally and in writing of the contents of the petition and
22 of his rights under Section 11a-11. The guardian ad litem
23 shall also attempt to elicit the respondent's position
24 concerning the adjudication of disability, the proposed
25 guardian, a proposed change in residential placement, changes
26 in care that might result from the guardianship, and other
27 areas of inquiry deemed appropriate by the court. At or
28 before the hearing, the guardian ad litem shall file a
29 written report detailing his or her observations of the
30 respondent, the responses of the respondent to any of the
31 inquires detailed in this Section, the opinion of the
32 guardian ad litem or other professionals with whom the
33 guardian ad litem consulted concerning the appropriateness of
34 guardianship, and any other material issue discovered by the
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1 guardian ad litem. The guardian ad litem shall appear at the
2 hearing and testify as to any issues presented in his or her
3 report.
4 (b) The court (1) may appoint counsel for the
5 respondent, if the court finds that the interests of the
6 respondent will be best served by the appointment, and (2)
7 shall appoint counsel upon respondent's request or if the
8 respondent takes a position adverse to that of the guardian
9 ad litem. The respondent shall be permitted to obtain the
10 appointment of counsel either at the hearing or by any
11 written or oral request communicated to the court prior to
12 the hearing. The summons shall inform the respondent of this
13 right to obtain appointed counsel. The court may allow
14 counsel for the respondent reasonable compensation.
15 (c) If the respondent is unable to pay the fee of the
16 guardian ad litem or appointed counsel, or both, the court
17 may enter an order for the petitioner to pay all such fees or
18 such amounts as the respondent or the respondent's estate may
19 be unable to pay. However, in cases where the Office of State
20 Guardian is the petitioner, consistent with Section 30 of the
21 Guardianship and Advocacy Act, or where an elder abuse
22 provider agency is the petitioner, pursuant to Section 9 of
23 the Elder Abuse and Neglect Act, no guardian ad litem or
24 legal fees shall be assessed against the Office of State
25 Guardian or the elder abuse provider agency.
26 (d) The hearing may be held at such convenient place as
27 the court directs, including at a facility in which the
28 respondent resides.
29 (e) Unless he is the petitioner, the respondent shall be
30 personally served with a copy of the petition and a summons
31 not less than 14 days before the hearing. The summons shall
32 be printed in large, bold type and shall include the
33 following notice:
34 NOTICE OF RIGHTS OF RESPONDENT
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1 You have been named as a respondent in a guardianship
2 petition asking that you be declared a disabled person. If
3 the court grants the petition, a guardian will be appointed
4 for you. A copy of the guardianship petition is attached for
5 your convenience.
6 The date and time of the hearing are:
7 The place where the hearing will occur is:
8 The Judge's name and phone number is:
9 If a guardian is appointed for you, the guardian may be
10 given the right to make all important personal decisions for
11 you, such as where you may live, what medical treatment you
12 may receive, what places you may visit, and who may visit
13 you. A guardian may also be given the right to control and
14 manage your money and other property, including your home, if
15 you own one. You may lose the right to make these decisions
16 for yourself.
17 You have the following legal rights:
18 (1) You have the right to be present at the court
19 hearing.
20 (2) You have the right to be represented by a
21 lawyer, either one that you retain, or one appointed by
22 the Judge.
23 (3) You have the right to ask for a jury of six
24 persons to hear your case.
25 (4) You have the right to present evidence to the
26 court and to confront and cross-examine witnesses.
27 (5) You have the right to ask the Judge to appoint
28 an independent expert to examine you and give an opinion
29 about your need for a guardian.
30 (6) You have the right to ask that the court
31 hearing be closed to the public.
32 (7) You have the right to tell the court whom you
33 prefer to have for your guardian.
34 You do not have to attend the court hearing if you do not
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1 want to be there. If you do not attend, the Judge may
2 appoint a guardian if the Judge finds that a guardian would
3 be of benefit to you. The hearing will not be postponed or
4 canceled if you do not attend.
5 IT IS VERY IMPORTANT THAT YOU ATTEND THE HEARING IF YOU
6 DO NOT WANT A GUARDIAN OR IF YOU WANT SOMEONE OTHER THAN THE
7 PERSON NAMED IN THE GUARDIANSHIP PETITION TO BE YOUR
8 GUARDIAN. IF YOU DO NOT WANT A GUARDIAN OF IF YOU HAVE ANY
9 OTHER PROBLEMS, YOU SHOULD CONTACT AN ATTORNEY OR COME TO
10 COURT AND TELL THE JUDGE.
11 Service of summons and the petition may be made by a
12 private person 18 years of age or over who is not a party to
13 the action.
14 (f) Notice of the time and place of the hearing shall be
15 given by the petitioner by mail or in person to those
16 persons, including the proposed guardian, whose names and
17 addresses appear in the petition and who do not waive notice,
18 not less than 14 days before the hearing.
19 (Source: P.A. 88-380; 89-396, eff. 8-20-95.)".