SB1838sam003 94TH GENERAL ASSEMBLY

Sen. Mattie Hunter

Filed: 4/11/2005

09400SB1838sam003 LRB094 11216 DRJ 44799 a

AMENDMENT TO SENATE BILL 1838

AMENDMENT NO. ______. Amend Senate Bill 1838 by replacing everything after the enacting clause with the following:

"Section 5. The Elder Abuse and Neglect Act is amended by changing Sections 2, 4, 5, 8, 9, and 13 and by adding Section 8.5 as follows:

(320 ILCS 20/2) (from Ch. 23, par. 6602)

Sec. 2. Definitions. As used in this Act, unless the context requires otherwise:

(a) "Abuse" means causing any physical, mental or sexual injury to an eligible adult, including exploitation of such adult's financial resources.

Nothing in this Act shall be construed to mean that an eligible adult is a victim of abuse or neglect for the sole reason that he or she is being furnished with or relies upon treatment by spiritual means through prayer alone, in accordance with the tenets and practices of a recognized church or religious denomination.

Nothing in this Act shall be construed to mean that an eligible adult is a victim of abuse because of health care services provided or not provided by licensed health care professionals.

(a-5) "Abuser" means a person who abuses, neglects, or financially exploits an eligible adult.

(a-7) "Caregiver" means a person who either as a result of a family relationship, voluntarily, or in exchange for compensation has assumed responsibility for all or a portion of the care of an eligible adult who needs assistance with activities of daily living.

(b) "Department" means the Department on Aging of the State of Illinois.

(c) "Director" means the Director of the Department.

(d) "Domestic living situation" means a residence where the eligible adult lives alone or with his or her family or a caregiver, or others, or a board and care home or other community-based unlicensed facility, but is not:

(1) A licensed facility as defined in Section 1-113 of the Nursing Home Care Act;

(2) A "life care facility" as defined in the Life Care Facilities Act;

(3) A home, institution, or other place operated by the federal government or agency thereof or by the State of Illinois;

(4) A hospital, sanitarium, or other institution, the principal activity or business of which is the diagnosis, care, and treatment of human illness through the maintenance and operation of organized facilities therefor, which is required to be licensed under the Hospital Licensing Act;

(5) A "community living facility" as defined in the Community Living Facilities Licensing Act;

(6) A "community residential alternative" as defined in the Community Residential Alternatives Licensing Act; and

(7) A "community-integrated living arrangement" as defined in the Community-Integrated Living Arrangements Licensure and Certification Act.

(e) "Eligible adult" means a person 60 years of age or older who resides in a domestic living situation and is, or is alleged to be, abused, neglected, or financially exploited by another individual.

(f) "Emergency" means a situation in which an eligible adult is living in conditions presenting a risk of death or physical, mental or sexual injury and the provider agency has reason to believe the eligible adult is unable to consent to services which would alleviate that risk.

(f-5) "Mandated reporter" means any of the following persons while engaged in carrying out their professional duties:

(1) a professional or professional's delegate while engaged in: (i) social services, (ii) law enforcement, (iii) education, (iv) the care of an eligible adult or eligible adults, or (v) any of the occupations required to be licensed under the Clinical Psychologist Licensing Act, the Clinical Social Work and Social Work Practice Act, the Illinois Dental Practice Act, the Dietetic and Nutrition Services Practice Act, the Marriage and Family Therapy Licensing Act, the Medical Practice Act of 1987, the Naprapathic Practice Act, the Nursing and Advanced Practice Nursing Act, the Nursing Home Administrators Licensing and Disciplinary Act, the Illinois Occupational Therapy Practice Act, the Illinois Optometric Practice Act of 1987, the Pharmacy Practice Act of 1987, the Illinois Physical Therapy Act, the Physician Assistant Practice Act of 1987, the Podiatric Medical Practice Act of 1987, the Respiratory Care Practice Act, the Professional Counselor and Clinical Professional Counselor Licensing Act, the Illinois Speech-Language Pathology and Audiology Practice Act, the Veterinary Medicine and Surgery Practice Act of 2004, and the Illinois Public Accounting Act;

(2) an employee of a vocational rehabilitation facility prescribed or supervised by the Department of Human Services;

(3) an administrator, employee, or person providing services in or through an unlicensed community based facility;

(4) a Christian Science Practitioner;

(5) field personnel of the Department of Public Aid, Department of Public Health, and Department of Human Services, and any county or municipal health department;

(6) personnel of the Department of Human Services, the Guardianship and Advocacy Commission, the State Fire Marshal, local fire departments, the Department on Aging and its subsidiary Area Agencies on Aging and provider agencies, and the Office of State Long Term Care Ombudsman;

(7) any employee of the State of Illinois not otherwise specified herein who is involved in providing services to eligible adults, including professionals providing medical or rehabilitation services and all other persons having direct contact with eligible adults;

(8) a person who performs the duties of a coroner or medical examiner; or

(9) a person who performs the duties of a paramedic or an emergency medical technician.

(g) "Neglect" means another individual's failure to provide an eligible adult with or willful withholding from an eligible adult the necessities of life including, but not limited to, food, clothing, shelter or medical care. This subsection does not create any new affirmative duty to provide support to eligible adults. Nothing in this Act shall be construed to mean that an eligible adult is a victim of neglect because of health care services provided or not provided by licensed health care professionals.

(g-5) "Protective services" means services to protect an eligible adult from further occurrences of abuse, self-neglect, neglect, or financial exploitation. Such services may include, but are not limited to, protective supervision, placement, and in-home or community-based services.

(h) "Provider agency" means any public or nonprofit agency in a planning and service area appointed by the regional administrative agency with prior approval by the Department on Aging to receive and assess reports of alleged or suspected abuse, neglect, or financial exploitation.

(i) "Regional administrative agency" means any public or nonprofit agency in a planning and service area so designated by the Department, provided that the designated Area Agency on Aging shall be designated the regional administrative agency if it so requests. The Department shall assume the functions of the regional administrative agency for any planning and service area where another agency is not so designated.

(i-5) "Self-neglect" means an eligible person's failure, without respect to cause, to perform essential self-care tasks, including, but not limited to: providing essential food clothing, shelter, and medical care; and obtaining goods and services necessary to maintain physical health or mental health.

(j) "Substantiated case" means a reported case of alleged or suspected abuse, neglect, or financial exploitation in which a provider agency, after assessment, determines that there is reason to believe abuse, neglect, or financial exploitation has occurred.

(Source: P.A. 92-16, eff. 6-28-01; 93-281 eff. 12-31-03; 93-300, eff. 1-1-04; revised 9-22-03.)

(320 ILCS 20/4) (from Ch. 23, par. 6604)

Sec. 4. Reports of abuse or neglect.

(a) Any person who suspects the abuse, self-neglect, neglect, or financial exploitation of an eligible adult may report this suspicion to an agency designated to receive such reports under this Act or to the Department.

(a-5) If any mandated reporter has reason to believe that an eligible adult, who because of dysfunction is unable to seek assistance for himself or herself, has, within the previous 12 months, been subjected to abuse, self-neglect, neglect, or financial exploitation, the mandated reporter shall, within 24 hours after developing such belief, report this suspicion to an agency designated to receive such reports under this Act or to the Department. Whenever a mandated reporter is required to report under this Act in his or her capacity as a member of the staff of a medical or other public or private institution, facility, board and care home, or agency, he or she shall make a report to an agency designated to receive such reports under this Act or to the Department in accordance with the provisions of this Act and may also notify the person in charge of the institution, facility, board and care home, or agency or his or her designated agent that the report has been made. Under no circumstances shall any person in charge of such institution, facility, board and care home, or agency, or his or her designated agent to whom the notification has been made, exercise any control, restraint, modification, or other change in the report or the forwarding of the report to an agency designated to receive such reports under this Act or to the Department. The privileged quality of communication between any professional person required to report and his or her patient or client shall not apply to situations involving abused, self-neglected, neglected, or financially exploited eligible adults and shall not constitute grounds for failure to report as required by this Act.

(a-7) A person making a report under this Act in the belief that it is in the alleged victim's best interest shall be immune from criminal or civil liability or professional disciplinary action on account of making the report, notwithstanding any requirements concerning the confidentiality of information with respect to such eligible adult which might otherwise be applicable.

(a-9) Law enforcement officers shall continue to report incidents of alleged abuse pursuant to the Illinois Domestic Violence Act of 1986, notwithstanding any requirements under this Act.

(b) Any person, institution or agency participating in the making of a report, providing information or records related to a report, assessment, or services, or participating in the investigation of a report under this Act in good faith, or taking photographs or x-rays as a result of an authorized assessment, shall have immunity from any civil, criminal or other liability in any civil, criminal or other proceeding brought in consequence of making such report or assessment or on account of submitting or otherwise disclosing such photographs or x-rays to any agency designated to receive reports of alleged or suspected abuse or neglect. Any person, institution or agency authorized by the Department to provide assessment, intervention, or administrative services under this Act shall, in the good faith performance of those services, have immunity from any civil, criminal or other liability in any civil, criminal, or other proceeding brought as a consequence of the performance of those services. For the purposes of any civil, criminal, or other proceeding, the good faith of any person required to report, permitted to report, or participating in an investigation of a report of alleged or suspected abuse, neglect, or financial exploitation shall be presumed.

(c) The identity of a person making a report of alleged or suspected abuse or neglect under this Act may be disclosed by the Department or other agency provided for in this Act only with such person's written consent or by court order.

(d) The Department shall by rule establish a system for filing and compiling reports made under this Act.

(e) Any physician who willfully fails to report as required by this Act shall be referred to the Illinois State Medical Disciplinary Board for action in accordance with subdivision (A)(22) of Section 22 of the Medical Practice Act of 1987. Any dentist or dental hygienist who willfully fails to report as required by this Act shall be referred to the Department of Professional Regulation for action in accordance with paragraph 19 of Section 23 of the Illinois Dental Practice Act. Any other mandated reporter required by this Act to report suspected abuse, neglect, or financial exploitation who willfully fails to report the same is guilty of a Class A misdemeanor.

(Source: P.A. 93-300, eff. 1-1-04; 93-301, eff. 1-1-04.)

(320 ILCS 20/5) (from Ch. 23, par. 6605)

Sec. 5. Procedure.

(a) A provider agency designated to receive reports of alleged or suspected abuse, neglect, or financial exploitation under this Act shall, and in the case of self-neglect may, upon receiving such a report, conduct a face-to-face assessment with respect to such report. The assessment shall include, but not be limited to, a visit to the residence of the eligible adult who is the subject of the report and may include interviews or consultations with service agencies or individuals who may have knowledge of the eligible adult's circumstances. If, after the assessment, the provider agency determines that the case is substantiated it shall develop a service care plan for the eligible adult. In developing the plan, the provider agency may consult with any other appropriate provider of services, and such providers shall be immune from civil or criminal liability on account of such acts. The plan shall include alternative suggested or recommended services which are appropriate to the needs of the eligible adult and which involve the least restriction of the eligible adult's activities commensurate with his or her needs. Only those services to which consent is provided in accordance with Section 9 of this Act shall be provided, contingent upon the availability of such services.

(b) A provider agency shall refer evidence of crimes against an eligible adult to the appropriate law enforcement agency according to Department policies. A referral to law enforcement may be made at intake or any time during the case. Where a provider agency has reason to believe the death of an eligible adult may be the result of abuse or neglect, the agency shall immediately report the matter to the coroner or medical examiner and shall cooperate fully with any subsequent investigation.

A provider agency shall develop a protocol in conjunction with and with the assistance of the M-Team required under Department requirements.

(c) If any person refuses to allow the provider agency to begin an investigation, interferes with the provider agency's ability to conduct an investigation, or refuses to give access to an eligible adult, the appropriate law enforcement agency may be contacted to assist in the investigation.

(d) A representative of a provider agency or a law enforcement officer, while investigating a report of alleged or suspected abuse, self-neglect, neglect, or financial exploitation, may take or cause to be taken photographs, videotapes, and digital or electronic recordings of the eligible adult, and of his or her environment, that are relevant to the investigation. All photographs, videotapes, and digital or electronic recordings taken during the course of the investigation are to be treated as records and shall be used only as other records are allowed to be used under this Act.

(e) If a provider agency has reason to believe that records not in its possession would be of assistance in an investigation of suspected abuse, self-neglect, neglect, or financial exploitation under this Act, then the provider agency may petition the chief judge, or another judge designated by the chief judge, of the judicial circuit in which the eligible adult resides for the issuance of a subpoena to the holder of the records sought by the provider agency. Upon a showing by the provider agency that the records are relevant to the investigation and upon notice to the holder of the records and notice to the eligible adult or his or her guardian, the court shall direct that a subpoena shall issue to the holder of the records. All records disclosed pursuant to a subpoena issued under this Section shall be treated as records under Section 8 of this Act.

(Source: P.A. 90-628, eff. 1-1-99.)

(320 ILCS 20/8) (from Ch. 23, par. 6608)

Sec. 8. Access to records. All records concerning reports of elder abuse, neglect, and financial exploitation and all records generated as a result of such reports shall be confidential and shall not be disclosed except as specifically authorized by this Act or other applicable law. Access to such records, but not access to the identity of the person or persons making a report of alleged abuse, neglect, or financial exploitation as contained in such records, shall be allowed to the following persons and for the following persons:

(1) Department staff, provider agency staff, other aging network staff, and regional administrative agency staff in the furtherance of their responsibilities under this Act or the Illinois Act on the Aging;

(2) A law enforcement agency investigating known or suspected elder abuse, neglect, or financial exploitation. Where a provider agency has reason to believe that the death of an eligible adult may be the result of abuse or neglect, the agency shall immediately provide the appropriate law enforcement agency with all records pertaining to the eligible adult;

(3) A physician who has before him or her or who is involved in the treatment of an eligible adult whom he or she reasonably suspects may be abused, neglected, or financially exploited or who has been referred to the Elder Abuse and Neglect Program;

(4) An eligible adult reported to be abused, neglected, or financially exploited, or such adult's guardian unless such guardian is the abuser or the alleged abuser;

(5) A court or a guardian ad litem, upon its or his or her finding that access to such records may be necessary for the determination of an issue before the court. However, such access shall be limited to an in camera inspection of the records, unless the court determines that disclosure of the information contained therein is necessary for the resolution of an issue then pending before it;

(6) A grand jury, upon its determination that access to such records is necessary in the conduct of its official business;

(7) Any person authorized by the Director, in writing, for audit or bona fide research purposes;

(8) A coroner or medical examiner who has reason to believe that an eligible adult has died as the result of abuse, neglect, or financial exploitation. The provider agency shall immediately provide the coroner or medical examiner with all records pertaining to the eligible adult; and

(9) Department of Professional Regulation staff and members of the Social Work Examining and Disciplinary Board in the course of investigating alleged violations of the Clinical Social Work and Social Work Practice Act by provider agency staff; and

(10) The State's Attorney of the judicial circuit in which the eligible adult resides or in which the alleged crime occurred or the Office of the Attorney General, or their authorized representatives, after the law enforcement agency with jurisdiction over the matter opens a criminal investigation.

(Source: P.A. 89-387, eff. 8-20-95; 90-628, eff. 1-1-99.)

(320 ILCS 20/8.5 new)

Sec. 8.5. Cooperation with law enforcement agencies.

(a) Within one year after the effective date of this amendatory Act of the 94th General Assembly, the Department shall enter into working agreements with the jurisdictionally responsible county sheriff's office or local police department or, when applicable, both, that will be the lead law enforcement agency when conducting any criminal investigation arising from allegations of abuse, neglect, or financial exploitation of an eligible adult. The working agreements must specify how the requirements of this Act will be met.

(b) Within one year after the effective date of this amendatory Act of the 94th General Assembly, every provider agency shall develop and implement a protocol in conjunction and cooperation with the M-Team mandated under Department rules for its service area in regard to referral of information on cases of elder abuse and neglect, including instances of financial exploitation, to local law enforcement agencies. In addition to a process for referral between elder abuse provider agencies and local law enforcement agencies, the protocol shall provide for a review, at least quarterly, of cases investigated by the provider that were referred to a law enforcement agency and cases not referred to a law enforcement agency for appropriateness and recommendations for any considerations for change in which cases are referred.

(c) The Department and all provider agencies shall work with any law enforcement agency conducting any criminal investigation arising from allegations of abuse, neglect, or financial exploitation of an eligible adult. The Department, all provider agencies, and law enforcement agencies shall cooperate to allow the criminal investigation to proceed concurrently with, and not be hindered by, any investigations conducted by provider agencies.

(d) Upon request of the law enforcement agency, the Department and all provider agencies shall provide, to any law enforcement agency conducting any criminal investigation arising from allegations of abuse, neglect, or financial exploitation of an eligible adult, all relevant information and records from provider agency investigations.

(e) Any law enforcement officer may make an arrest without a warrant if the officer has probable cause to believe that the person has committed or is committing any crime, including, but not limited to, criminal abuse or neglect of an elderly person under Section 12-21 of the Criminal Code of 1961 or a violation of an order of protection under Section 12-30 of the Criminal Code of 1961, even if the crime was not committed in the presence of the officer. The law enforcement officer may verify the existence of an order of protection under Section 12-30 of the Criminal Code of 1961 by telephone or radio communication with his or her law enforcement agency or by referring to the copy of the order provided by the petitioner or respondent.

(320 ILCS 20/9) (from Ch. 23, par. 6609)

Sec. 9. Authority to consent to services.

(a) If an eligible adult consents to services being provided according to the service care plan, such services shall be arranged to meet the adult's needs, based upon the availability of resources to provide such services. If an adult withdraws his or her consent or refuses to accept such services, the services shall not be provided, except as allowed under subsection (f) of this Section.

(b) If it reasonably appears to the Department or other agency designated under this Act that a person is an eligible adult and lacks the capacity to consent to necessary services, including an assessment, the Department or other agency may seek the appointment of a guardian as provided in Article XIa of the Probate Act of 1975 for the purpose of consenting to such services.

(c) A guardian of the person of an eligible adult may consent to services being provided according to the service care plan. If a guardian withdraws his or her consent or refuses to allow services to be provided to the eligible adult, the Department, an agency designated under this Act, or the office of the Attorney General may request a court order seeking appropriate remedies, and may in addition request removal of the guardian and appointment of a successor guardian.

(d) If an emergency exists and the Department or other agency designated under this Act reasonably believes that a person is an eligible adult and lacks the capacity to consent to necessary services, the Department or other agency may request an ex parte order from the circuit court of the county in which the petitioner or respondent resides or in which the alleged abuse, neglect, or financial exploitation occurred, authorizing an assessment of a report of alleged or suspected abuse, neglect, or financial exploitation or the provision of necessary services, or both, including relief available under the Illinois Domestic Violence Act of 1986. Petitions filed under this subsection shall be treated as expedited proceedings. This subsection does not limit the actions allowed under subsection (f) of this Section.

(e) Within 15 days after the entry of the ex parte emergency order, the order shall expire, or, if the need for assessment or services continues, the provider agency shall petition for the appointment of a guardian as provided in Article XIa of the Probate Act of 1975 for the purpose of consenting to such assessment or services or to protect the eligible adult from further harm.

(f) If the Department or a provider agency has reasonable cause to believe that an emergency exists, as "emergency" is defined in this Act, the Department or the provider agency may take action under this subsection. If the eligible adult has the capacity to consent and refuses to consent to protective services, emergency protective services may not be provided.

If, upon arrival at the residence or temporary residence of the eligible adult, (i) consent is not obtained for access to the eligible adult for purposes of conducting an investigation under this Act, (ii) the Department or provider agency has reason to believe that an emergency exists, as emergency is defined in this Act, and (iii) the situation presents a risk of death or serious physical or sexual injury, a representative of the Department or the provider agency and a law enforcement officer may forcibly enter the premises. If, after obtaining access to the eligible adult, it is determined through a personal assessment of the situation that no emergency exists and there is no basis for protective services intervention under this subsection, the Department, provider agency, and law enforcement officer shall terminate the emergency entry.

If a forcible entry under this subsection occurs and if, from the personal observations of the representative of the Department or the representative of the provider agency or the law enforcement officer, it is likely that the eligible adult will incur a risk of death or serious physical or sexual injury if such person is not immediately removed from the premises, then the representative of the Department or provider agency shall transport or arrange for the transportation of the eligible adult to an appropriate medical or protective services facility in order to provide protective services. Law enforcement personnel have a duty to transport when medical transportation is not available or needed and the eligible adult presents a threat of injury to self or others. If the eligible adult's caregiver or guardian is present, the Department, provider agency, or law enforcement officer must seek the caregiver's or guardian's consent before the eligible adult may be removed from the premises, unless the Department, provider agency, or law enforcement officer suspects that the eligible adult's caregiver or guardian has caused the abuse or neglect. Within 24 hours after providing or arranging for emergency removal of the eligible adult, excluding Saturdays, Sundays, and legal holidays, the Department or provider agency shall petition for the appointment of a guardian as provided in Article XIa of the Probate Act of 1975 for the purposes of consenting to protective services.

If, upon an eligible adult's admission to a medical facility, it is the opinion of the medical staff that immediate medical treatment is necessary to prevent serious physical injury or death and that such treatment does not violate a health care advance directive prepared by the eligible adult and received by the medical staff, the medical facility may proceed with treatment of the eligible adult. If a person with legal authority to give consent for the provision of medical treatment to an eligible adult has not given or has refused to give such consent, examination and treatment must be limited to reasonable examination of the patient to determine the medical condition of the patient and treatment reasonably necessary to alleviate the emergency medical condition or to stabilize the patient pending court determination of a petition for the appointment of a guardian as provided in Article XIa of the Probate Act of 1975.

This Section does not limit in any way the authority of a court, a law enforcement agency, a State's Attorney, the Office of the Attorney General, or their authorized representatives or any other duly appointed official, to intervene in emergency circumstances under any other provision of law. This Section does not limit the authority of any person to file a petition for guardianship.

(Source: P.A. 90-628, eff. 1-1-99.)

(320 ILCS 20/13)

Sec. 13. Access.

(a) The designated provider agencies shall have access to eligible adults who have been reported or found to be victims of abuse, neglect, or financial exploitation in order to assess the validity of the report, assess other needs of the eligible adult, and provide services in accordance with this Act.

(b) Where access to an eligible adult is denied, the Office of the Attorney General, the Department, or the provider agency may petition the court for an order to require appropriate access where:

(1) a caregiver or third party has interfered with the assessment or service plan, or

(2) the agency has reason to believe that the eligible adult is denying access because of coercion, extortion, or justifiable fear of future abuse, neglect, or financial exploitation.

(c) The petition for an order requiring appropriate access shall be afforded an expedited hearing in the circuit court.

(d) If the elder abuse provider agency has substantiated financial exploitation against an eligible adult, and has documented a reasonable belief that the eligible adult will be irreparably harmed as a result of the financial exploitation, the Office of the Attorney General, the Department, or the provider agency may petition for an order freezing the assets of the eligible adult. The petition shall be filed in the county or counties in which the assets are located. The court's order shall prohibit the sale, gifting, transfer, or wasting of the assets of the eligible adult, both real and personal, owned by, or vested in, the eligible adult, without the express permission of the court. The petition to freeze the assets of the eligible adult shall be afforded an expedited hearing in the circuit court.

(e) This Section does not prohibit the actions authorized in subsection (f) of Section 9 of this Act.

(Source: P.A. 90-628, eff. 1-1-99.)

Section 10. The Criminal Code of 1961 is amended by changing Section 16-1.3 as follows:

(720 ILCS 5/16-1.3) (from Ch. 38, par. 16-1.3)

Sec. 16-1.3. Financial exploitation of an elderly person or a person with a disability.

(a) A person commits the offense of financial exploitation of an elderly person or a person with a disability when he or she stands in a position of trust or confidence with the elderly person or a person with a disability and he or she knowingly and by deception or intimidation obtains control over the property of an elderly person or a person with a disability or illegally uses the assets or resources of an elderly person or a person with a disability. The illegal use of the assets or resources of an elderly person or a person with a disability includes, but is not limited to, the misappropriation of those assets or resources by undue influence, breach of a fiduciary relationship, fraud, deception, extortion, or use of the assets or resources contrary to law.

Financial exploitation of an elderly person or a person with a disability is a Class 4 felony if the value of the property is $300 or less, a Class 3 felony if the value of the property is more than $300 but less than $5,000, a Class 2 felony if the value of the property is $5,000 or more but less than $100,000 and a Class 1 felony if the value of the property is $100,000 or more or if the elderly person is over 70 years of age and the value of the property is $15,000 or more or if the elderly person is 80 years of age or older and the value of the property is $5,000 or more.

(b) For purposes of this Section:

(1) "Elderly person" means a person 60 years of age or older.

(2) "Person with a disability" means a person who suffers from a permanent physical or mental impairment resulting from disease, injury, functional disorder or congenital condition that impairs the individual's mental or physical ability to independently manage his or her property or financial resources, or both.

(3) "Intimidation" means the communication to an elderly person or a person with a disability that he or she shall be deprived of food and nutrition, shelter, prescribed medication, or medical care and treatment, or contact with that person's family members or care provider. "Intimidation" also means the communication to an elderly person or a person with a disability that he or she will be unnecessarily moved from his or her current residence to another residence or to a facility.

(4) "Deception" means, in addition to its meaning as defined in Section 15-4 of this Code, a misrepresentation or concealment of material fact relating to the terms of a contract or agreement entered into with the elderly person or person with a disability or to the existing or pre-existing condition of any of the property involved in such contract or agreement; or the use or employment of any misrepresentation, false pretense or false promise in order to induce, encourage or solicit the elderly person or person with a disability to enter into a contract or agreement.

(c) For purposes of this Section, a person stands in a position of trust and confidence with an elderly person or person with a disability when he (1) is a parent, spouse, adult child or other relative by blood or marriage of the elderly person or person with a disability, (2) is a joint tenant or tenant in common with the elderly person or person with a disability, (3) has a legal or fiduciary relationship with the elderly person or person with a disability, or (4) is a financial planning or investment professional.

(d) Nothing in this Section shall be construed to limit the remedies available to the victim under the Illinois Domestic Violence Act of 1986.

(e) Nothing in this Section shall be construed to impose criminal liability on a person who has made a good faith effort to assist the elderly person or person with a disability in the management of his or her property, but through no fault of his or her own has been unable to provide such assistance.

(f) It shall not be a defense to financial exploitation of an elderly person or person with a disability that the accused reasonably believed that the victim was not an elderly person or person with a disability.

(g) Civil Liability. A person who is charged by information or indictment with the offense of financial exploitation of an elderly person or person with a disability and who fails or refuses to return the victim's property within 60 days following a written demand from the victim or the victim's legal representative shall be liable to the victim or to the estate of the victim in damages of treble the amount of the value of the property obtained, plus reasonable attorney fees and court costs. The burden of proof that the defendant unlawfully obtained the victim's property shall be by a preponderance of the evidence. This subsection shall be operative whether or not the defendant has been convicted of the offense.

(Source: P.A. 92-808, eff. 8-21-02; 93-301, eff. 1-1-04.)".