Sen. Don Harmon

Filed: 4/4/2014





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2    AMENDMENT NO. ______. Amend Senate Bill 1048 by replacing
3everything after the enacting clause with the following:
4    "Section 5. The Probate Act of 1975 is amended by changing
5Section 11a-2 and by adding Article IVa as follows:
6    (755 ILCS 5/Art. IVa heading new)

9    (755 ILCS 5/4a-5 new)
10    Sec. 4a-5. Definitions. As used in this Article:
11    (1) "Caregiver" means a person who, either as a result of a
12family relationship, voluntarily, or in exchange for
13compensation, has assumed responsibility for all or a portion
14of the care of another person who needs assistance with
15activities of daily living. "Caregiver" does not include the



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1spouse of the person receiving assistance.
2    (2) "Independent attorney" means an attorney, other than an
3attorney who:
4        (A) is described in subsection (b) of Section 4a-10; or
5        (B) has served as an attorney for a person who is
6    described in subsection (b) of Section 4a-10.
7    (3) "Transfer instrument" means the legal document
8intended to effectuate a transfer effective on or after the
9transferor's death and includes, without limitation, a will,
10trust, deed, form designated as payable on death, contract, or
11other beneficiary designation form.
12    (4) "Transferee" means a legatee, a beneficiary of trust, a
13grantee of a deed, or any other person designated in a transfer
14instrument to receive a nonprobate transfer.
15    (5) "Transferor" means a testator, settlor, grantor of a
16deed, or a decedent whose interest is transferred pursuant to a
17nonprobate transfer.
18    (755 ILCS 5/4a-10 new)
19    Sec. 4a-10. Presumption of void transfer. Except as
20provided in Section 4a-15, a transfer instrument is presumed to
21be void if the transferee is a caregiver, or person related to
22a caregiver, and the fair fair market value of the transferred
23property exceeds $20,000.
24    (755 ILCS 5/4a-15 new)



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1    Sec. 4a-15. Exceptions. The presumption established by
2Section 4a-10 does not apply if the transferee either:
3        (1) establishes that the transferee's share under the
4    transfer instrument is not greater than the share the
5    transferee was entitled to under the transferror's
6    testamentary plan in effect prior to the transferee
7    becoming a caregiver;
8        (2) establishes by clear and convincing evidence that
9    the transfer was not the product of fraud, duress, or undue
10    influence, provided that the determination of the court
11    pursuant to this paragraph must not be based solely upon
12    the testimony of the caregiver; or
13        (3) establishes that the transfer instrument was
14    reviewed by an independent attorney who signed and
15    delivered to the transferor an original certificate of that
16    review, in a dated form consisting of substantially the
17    following:
19        I, .......... (attorney's name), have reviewed
20        .......... (name of transfer instrument) prior to its
21        execution, and have counseled my client, ..........
22        (name of client), on the nature and consequences of the
23        transfer or transfers of property to .......... (name
24        of transferee) contained in the transfer instrument. I
25        am disassociated from the interest of the transferee to
26        the extent that I am in a position to advise my client



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1        independently, impartially, and confidentially as to
2        the consequences of the transfer. On the basis of this
3        counsel, I conclude that the transfer or transfers of
4        property in the transfer instrument that otherwise
5        might be invalid pursuant to Section 4a-10 of the
6        Probate Act of 1975 are valid because the transfer or
7        transfers are not the product of fraud, duress, or
8        undue influence.
9    (755 ILCS 5/4a-20 new)
10    Sec. 4a-20. Common law. The provisions of this Article do
11not abrogate or limit any principle or rule of the common law,
12unless the common law principle or rule is inconsistent with
13the provisions of this Article.
14    (755 ILCS 5/4s-25 new)
15    Sec. 4s-25. Attorney's fees and costs. If the caregiver
16attempts and fails to overcome the presumption under Section
174a-15, the caregiver shall bear the costs of the proceedings,
18including, without limitation, reasonable attorney's fees.
19    (755 ILCS 5/11a-2)  (from Ch. 110 1/2, par. 11a-2)
20    Sec. 11a-2. "Disabled person" defined.) "Disabled person"
21means a person 18 years or older who (a) because of mental
22deterioration or physical incapacity is not fully able to
23manage his person or estate or is unable to resist fraud or



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1undue influence, or (b) is a person with mental illness or a
2person with a developmental disability and who because of his
3mental illness or developmental disability is not fully able to
4manage his person or estate or is unable to resist fraud or
5undue influence, or (c) because of gambling, idleness,
6debauchery or excessive use of intoxicants or drugs, so spends
7or wastes his estate as to expose himself or his family to want
8or suffering, or (d) is diagnosed with fetal alcohol syndrome
9or fetal alcohol effects.
10(Source: P.A. 95-561, eff. 1-1-08.)".