Full Text of HB5653 97th General Assembly
HB5653 97TH GENERAL ASSEMBLY |
| | 97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012 HB5653 Introduced 2/15/2012, by Rep. Emily McAsey SYNOPSIS AS INTRODUCED: |
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720 ILCS 5/17-56 | was 720 ILCS 5/16-1.3 |
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Amends the Criminal Code of 1961 concerning financial exploitation of an elderly
person or a person with a disability. Includes in the definition of intimidation, criminal intimidation. Includes in the definition of a person who stands in a position of
trust and confidence with an elderly person or person with a
disability, a paid or unpaid caregiver for the elderly person or person with a disability. Provides that if a person is charged with financial exploitation of an elderly person or a person with a disability that involves the taking or loss of more than $5,000, a prosecuting attorney may file a petition with the circuit court of the county in which the defendant has been charged to freeze the assets of the defendant for purposes of restitution to the victim. Provides that the burden of proof that the defendant unlawfully obtained the victim's property shall be by a preponderance of the evidence. Provides that this provision is operative whether or not the defendant has been convicted of the offense.
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| | | CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY | |
| | A BILL FOR |
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| 1 | | AN ACT concerning criminal law.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Criminal Code of 1961 is amended by changing | 5 | | Section 17-56 as follows:
| 6 | | (720 ILCS 5/17-56) (was 720 ILCS 5/16-1.3)
| 7 | | Sec. 17-56. Financial exploitation of an elderly person or | 8 | | a
person with a disability.
| 9 | | (a) A person commits financial exploitation of an elderly
| 10 | | person or a person with a disability when he or she stands in a
| 11 | | position of trust
or confidence with the
elderly person or a | 12 | | person with a disability
and he
or she knowingly and by
| 13 | | deception or
intimidation obtains control over the property of | 14 | | an elderly person or
a person
with a disability
or illegally | 15 | | uses the assets or resources of an elderly person or a
person | 16 | | with a disability.
| 17 | | (b) Sentence. Financial exploitation of an elderly person | 18 | | or a person
with a
disability is: (1) a Class 4
felony if the | 19 | | value of the property is $300 or less, (2) a Class 3 felony if
| 20 | | the value of the property is more than $300 but less than | 21 | | $5,000, (3) a Class 2
felony if the value of the property is | 22 | | $5,000 or more but less than
$50,000, and (4) a Class 1 felony | 23 | | if the value of the property is $50,000 or more
or if the |
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| 1 | | elderly person is over 70 years of age and the value of the
| 2 | | property is $15,000 or more or if the elderly person is 80 | 3 | | years of age or
older and the value of the property is $5,000 | 4 | | or more.
| 5 | | (c) For purposes of this Section:
| 6 | | (1) "Elderly person" means a person 60
years of age or | 7 | | older.
| 8 | | (2) "Person with a disability" means a person who
| 9 | | suffers from a physical or mental impairment resulting from
| 10 | | disease, injury, functional disorder or congenital | 11 | | condition that impairs the
individual's mental or physical | 12 | | ability to independently manage his or her
property or | 13 | | financial resources, or both.
| 14 | | (3) "Intimidation" means the communication to an | 15 | | elderly person or a
person with a disability that he or she | 16 | | shall be deprived of food and
nutrition,
shelter, | 17 | | prescribed
medication or medical care and treatment or | 18 | | conduct as provided in Section 12-6 of this Code .
| 19 | | (4) "Deception" means, in addition to its meaning as | 20 | | defined in Section
15-4 of this Code,
a misrepresentation | 21 | | or concealment of material fact
relating to the terms of a | 22 | | contract or agreement entered into with the
elderly person | 23 | | or person with a disability or to the
existing or
| 24 | | pre-existing condition of
any of the property involved in | 25 | | such contract or agreement; or the use or
employment of any | 26 | | misrepresentation, false pretense or false promise in
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| 1 | | order to induce, encourage or solicit the elderly person or
| 2 | | person with
a disability to
enter into a contract or | 3 | | agreement.
| 4 | | The illegal use of the assets or resources of an
elderly | 5 | | person or a person with a disability includes, but is not | 6 | | limited
to, the misappropriation of those assets or resources | 7 | | by undue influence,
breach of a fiduciary relationship, fraud, | 8 | | deception, extortion, or
use of the assets or resources | 9 | | contrary to law. | 10 | | A person stands in a position of
trust and confidence with | 11 | | an elderly person or person with a
disability when he (i) is a
| 12 | | parent, spouse, adult child or other relative by blood or | 13 | | marriage of the
elderly person or person with a disability, | 14 | | (ii) is a joint
tenant or
tenant in common with
the elderly | 15 | | person or person with a disability, (iii) has
a legal or
| 16 | | fiduciary relationship
with the elderly person or person with a | 17 | | disability, or (iv) is a financial
planning or investment | 18 | | professional , or (v) is a paid or unpaid caregiver for the | 19 | | elderly person or person with a disability .
| 20 | | (d) Limitations. Nothing in this Section shall be construed | 21 | | to limit the remedies
available to the victim under the | 22 | | Illinois Domestic Violence Act of 1986.
| 23 | | (e) Good faith efforts. Nothing in this Section shall be | 24 | | construed to impose criminal
liability on a person who has made | 25 | | a good faith effort to assist the
elderly person or person with | 26 | | a disability in the
management of his or her
property, but |
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| 1 | | through
no fault of his or her own has been unable to provide | 2 | | such assistance.
| 3 | | (f) Not a defense. It shall not be a defense to financial | 4 | | exploitation of an elderly
person or person with a disability | 5 | | that the accused reasonably believed
that the victim was
not an | 6 | | elderly person or person with a disability.
| 7 | | (g) Civil Liability. A person who is charged by information | 8 | | or
indictment with the offense of financial exploitation of an | 9 | | elderly person
or person with a disability and who fails or | 10 | | refuses to return
the victim's property
within 60 days | 11 | | following a written demand from the victim or the victim's
| 12 | | legal representative shall be liable to the victim or to the | 13 | | estate of the
victim in damages of treble the amount of the | 14 | | value of the property
obtained, plus reasonable attorney fees | 15 | | and court costs. The burden of
proof that the defendant | 16 | | unlawfully obtained the victim's property shall be
by a | 17 | | preponderance of the evidence. This subsection shall be | 18 | | operative
whether or not the defendant has been convicted of | 19 | | the offense.
| 20 | | (h) If a person is charged with financial exploitation of | 21 | | an elderly person or a person with a disability that involves | 22 | | the taking or loss of more than $5,000, a prosecuting attorney | 23 | | may file a petition with the circuit court of the county in | 24 | | which the defendant has been charged to freeze the assets of | 25 | | the defendant for purposes of restitution to the victim. The | 26 | | burden of proof that the defendant unlawfully obtained the |
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| 1 | | victim's property shall be by a preponderance of the evidence. | 2 | | This subsection is operative whether or not the defendant has | 3 | | been convicted of the offense. | 4 | | (Source: P.A. 96-1551, eff. 7-1-11; 97-482, eff. 1-1-12.)
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