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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. -2- SRS90SB1835JJawam01 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 -3- SRS90SB1835JJawam01 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,
orneglected, 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 -4- SRS90SB1835JJawam01 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, orneglect, 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, orneglect, or financial 23 exploitation in which a provider agency, after assessment, 24 determines that there is reason to believe abuse, orneglect, 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 elderabuse, orneglect, or financial exploitation. The 33 Department shall contract with or fund or, contract with and -6- SRS90SB1835JJawam01 1 fund, regional administrative agencies, orprovider 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 servicespursuant 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, orneglect, 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 -7- SRS90SB1835JJawam01 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 case20 of alleged or suspectedabuse, orneglect, or financial 21 exploitation of an eligible adult may make such areport 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 patientwhich 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 -9- SRS90SB1835JJawam01 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, -10- SRS90SB1835JJawam01 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, orneglect, 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 -11- SRS90SB1835JJawam01 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 thanone 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, andneglect, 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 -12- SRS90SB1835JJawam01 1 the identity of the person or persons making a report of 2 alleged abuse, orneglect, 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, orneglect, 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, orneglected, 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, or21 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 suchcourt. 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; -13- SRS90SB1835JJawam01 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, orneglect, 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 temporaryguardian 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 -14- SRS90SB1835JJawam01 1 order an order of protection under the Illinois Domestic2 Violence Act of 1986seeking 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, orneglect, or financial 12 exploitation occurred, authorizing an assessment of a report 13 of alleged or suspected abuse, orneglect, or financial 14 exploitation or andthe 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 90days 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.) -15- SRS90SB1835JJawam01 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 -16- SRS90SB1835JJawam01 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. -17- SRS90SB1835JJawam01 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 -18- SRS90SB1835JJawam01 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 -19- SRS90SB1835JJawam01 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 -20- SRS90SB1835JJawam01 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 -21- SRS90SB1835JJawam01 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 -22- SRS90SB1835JJawam01 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.)".
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