Sen. Andy Manar

Filed: 5/22/2014

 

 


 

 


 
09800HB2898sam003LRB098 09052 RLC 60074 a

1
AMENDMENT TO HOUSE BILL 2898

2    AMENDMENT NO. ______. Amend House Bill 2898, AS AMENDED, by
3replacing everything after the enacting clause with the
4following:
 
5    "Section 5. The Criminal Code of 2012 is amended by
6changing Section 17-56 as follows:
 
7    (720 ILCS 5/17-56)  (was 720 ILCS 5/16-1.3)
8    Sec. 17-56. Financial exploitation of an elderly person or
9a person with a disability.
10    (a) A person commits financial exploitation of an elderly
11person or a person with a disability when he or she stands in a
12position of trust or confidence with the elderly person or a
13person with a disability and he or she:
14        (1) knowingly and by deception or intimidation obtains
15    control over the property of an elderly person or a person
16    with a disability, or illegally uses the assets or

 

 

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1    resources of an elderly person or a person with a
2    disability; or
3        (2) knowingly obtains control over the property of an
4    elderly person or a person with a disability when he or she
5    knows or reasonably should know that the elderly person or
6    person with a disability lacks the capacity to consent.
7    (b) Sentence. Financial exploitation of an elderly person
8or a person with a disability is: (1) a Class 4 felony if the
9value of the property is $300 or less, (2) a Class 3 felony if
10the value of the property is more than $300 but less than
11$5,000, (3) a Class 2 felony if the value of the property is
12$5,000 or more but less than $50,000, and (4) a Class 1 felony
13if the value of the property is $50,000 or more or if the
14elderly person is over 70 years of age and the value of the
15property is $15,000 or more or if the elderly person is 80
16years of age or older and the value of the property is $5,000
17or more.
18    (c) For purposes of this Section:
19        (1) "Elderly person" means a person 60 years of age or
20    older.
21        (2) "Person with a disability" means a person who
22    suffers from a physical or mental impairment resulting from
23    disease, injury, functional disorder or congenital
24    condition that impairs the individual's mental or physical
25    ability to independently manage his or her property or
26    financial resources, or both.

 

 

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1        (3) "Intimidation" means the communication to an
2    elderly person or a person with a disability that he or she
3    shall be deprived of food and nutrition, shelter,
4    prescribed medication or medical care and treatment or
5    conduct as provided in Section 12-6 of this Code.
6        (4) "Deception" means, in addition to its meaning as
7    defined in Section 15-4 of this Code, a misrepresentation
8    or concealment of material fact relating to the terms of a
9    contract or agreement entered into with the elderly person
10    or person with a disability or to the existing or
11    pre-existing condition of any of the property involved in
12    such contract or agreement; or the use or employment of any
13    misrepresentation, false pretense or false promise in
14    order to induce, encourage or solicit the elderly person or
15    person with a disability to enter into a contract or
16    agreement.
17        (5) "Lacks the capacity to consent" means an impairment
18    by reason of mental illness, developmental disability,
19    intellectual disability, organic brain disorder, physical
20    illness or disability, chronic use of drugs, chronic
21    intoxication, short-term memory loss, or other cause, that
22    causes an elderly person or disabled adult to lack
23    sufficient understanding or capacity to make or
24    communicate reasonable decisions concerning the elderly
25    person's or disabled adult's person or property.
26        (6) The illegal use of the assets or resources of an

 

 

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1    elderly person or a person with a disability includes, but
2    is not limited to, the misappropriation of those assets or
3    resources by undue influence, breach of a fiduciary
4    relationship, fraud, deception, extortion, or use of the
5    assets or resources contrary to law.
6    A person stands in a position of trust and confidence with
7an elderly person or person with a disability when he (i) is a
8parent, spouse, adult child or other relative by blood or
9marriage of the elderly person or person with a disability,
10(ii) is a joint tenant or tenant in common with the elderly
11person or person with a disability, (iii) has a legal or
12fiduciary relationship with the elderly person or person with a
13disability, (iv) is a financial planning or investment
14professional, or (v) is a paid or unpaid caregiver for the
15elderly person or person with a disability.
16    (d) Limitations. Nothing in this Section shall be construed
17to limit the remedies available to the victim under the
18Illinois Domestic Violence Act of 1986.
19    (e) Good faith efforts. Nothing in this Section shall be
20construed to impose criminal liability on a person who has made
21a good faith effort to assist the elderly person or person with
22a disability in the management of his or her property, but
23through no fault of his or her own has been unable to provide
24such assistance.
25    (f) Not a defense. It shall not be a defense to financial
26exploitation of an elderly person or person with a disability

 

 

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1that the accused reasonably believed that the victim was not an
2elderly person or person with a disability.
3    (g) Civil Liability. A person who is charged by information
4or indictment with the offense of financial exploitation of an
5elderly person or person with a disability and who fails or
6refuses to return the victim's property within 60 days
7following a written demand from the victim or the victim's
8legal representative shall be liable to the victim or to the
9estate of the victim in damages of treble the amount of the
10value of the property obtained, plus reasonable attorney fees
11and court costs. The burden of proof that the defendant
12unlawfully obtained the victim's property shall be by a
13preponderance of the evidence. This subsection shall be
14operative whether or not the defendant has been convicted of
15the offense.
16    (h) If a person is charged with financial exploitation of
17an elderly person or a person with a disability that involves
18the taking or loss of property valued at more than $5,000, a
19prosecuting attorney may file a petition with the circuit court
20of the county in which the defendant has been charged to freeze
21the assets of the defendant in an amount equal to but not
22greater than the alleged value of lost or stolen property in
23the defendant's pending criminal proceeding for purposes of
24restitution to the victim. The burden of proof required to
25freeze the defendant's assets shall be by a preponderance of
26the evidence.

 

 

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1(Source: P.A. 96-1551, eff. 7-1-11; 97-482, eff. 1-1-12;
297-865, eff. 1-1-13.)".