Full Text of SB2955 98th General Assembly
SB2955sam001 98TH GENERAL ASSEMBLY | Sen. Ira I. Silverstein Filed: 3/20/2014
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| 1 | | AMENDMENT TO SENATE BILL 2955
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 2955 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Probate Act of 1975 is amended by changing | 5 | | Sections 2-6.2 and 2-6.6 as follows:
| 6 | | (755 ILCS 5/2-6.2)
| 7 | | Sec. 2-6.2. Financial exploitation, abuse, or neglect of an | 8 | | elderly person
or a person with a disability. | 9 | | (a) In this Section:
| 10 | | "Abuse" means any offense described in Section 12-21 or | 11 | | subsection (b) of Section 12-4.4a of the Criminal Code of
1961 | 12 | | or the Criminal Code of 2012.
| 13 | | "Financial exploitation" means any offense or act | 14 | | described or defined in Section 16-1.3 or 17-56 of the
Criminal | 15 | | Code of 1961 or the Criminal Code of 2012 , and, in the context | 16 | | of civil proceedings, the taking, use, or other |
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| 1 | | misappropriation of the assets or resources of an elderly | 2 | | person or a person with a disability contrary to law, | 3 | | including, but not limited to, misappropriation of assets or | 4 | | resources by undue influence, breach of a fiduciary | 5 | | relationship, fraud, deception, extortion, and conversion .
| 6 | | "Neglect" means any offense described in Section 12-19 or | 7 | | subsection (a) of Section 12-4.4a of the Criminal Code
of 1961 | 8 | | or the Criminal Code of 2012.
| 9 | | (b) Persons convicted of financial exploitation,
abuse, or | 10 | | neglect of an elderly person or a person with a disability or | 11 | | persons who have been found by a preponderance of the evidence | 12 | | to be civilly liable for financial exploitation shall not
| 13 | | receive
any property, benefit, or other interest by reason of | 14 | | the
death of that elderly person or person with a disability, | 15 | | whether as heir,
legatee,
beneficiary, survivor, appointee, | 16 | | claimant under Section 18-1.1, or in any other capacity
and | 17 | | whether the property, benefit, or other interest passes
| 18 | | pursuant to any form of title registration, testamentary or
| 19 | | nontestamentary instrument, intestacy, renunciation, or any
| 20 | | other circumstance. Except as provided in subsection (f) of | 21 | | this Section, the The property, benefit, or other
interest | 22 | | shall pass as if the person convicted of the
financial | 23 | | exploitation, abuse, or neglect or person found civilly liable | 24 | | for financial exploitation died before the
decedent, provided | 25 | | that with respect to joint tenancy
property the interest | 26 | | possessed prior to the death by the
person convicted of the |
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| 1 | | financial exploitation, abuse, or
neglect shall not be
| 2 | | diminished by the application of this Section. Notwithstanding | 3 | | the
foregoing, a person convicted of financial exploitation, | 4 | | abuse, or neglect of
an elderly person or a person with a | 5 | | disability or a person who has been found by a preponderance of | 6 | | the evidence to be civilly liable for financial exploitation | 7 | | shall be entitled to receive
property, a benefit, or an
| 8 | | interest in any capacity and under any circumstances described | 9 | | in this
subsection (b) if it is demonstrated by clear and | 10 | | convincing evidence that the
victim of that offense knew of the | 11 | | conviction or finding of civil liability and subsequent to the
| 12 | | conviction or finding of civil liability expressed or ratified | 13 | | his or her intent to transfer the property,
benefit, or | 14 | | interest to the person convicted of financial exploitation, | 15 | | abuse,
or
neglect of an elderly person or a person with a | 16 | | disability or the person found by a preponderance of the | 17 | | evidence to be civilly liable for financial exploitation in any | 18 | | manner
contemplated by this subsection
(b).
| 19 | | (c)(1) The holder of any property subject to the
provisions | 20 | | of this Section shall not be liable for
distributing or | 21 | | releasing the property to the person
convicted of financial | 22 | | exploitation, abuse, or neglect of
an elderly person or a | 23 | | person with a disability or the person who has been found by a | 24 | | preponderance of the evidence to be civilly liable for | 25 | | financial exploitation if the distribution or release
occurs
| 26 | | prior to the conviction or finding of civil liability .
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| 1 | | (2) If the holder is a financial institution, trust | 2 | | company, trustee, or
similar entity or person, the holder shall | 3 | | not be liable for any distribution
or
release of the property, | 4 | | benefit, or other interest to the person convicted of
a
| 5 | | violation of Section 12-19, 12-21, 16-1.3, or 17-56, or | 6 | | subsection (a) or (b) of Section 12-4.4a, of the Criminal Code | 7 | | of 1961 or the Criminal Code of 2012 or the person who has been | 8 | | found by a preponderance of the evidence to be civilly liable | 9 | | for financial exploitation
unless the holder knowingly | 10 | | distributes or releases the property, benefit, or
other | 11 | | interest to the person so convicted or found civilly liable | 12 | | after first having received actual
written notice of the | 13 | | conviction in sufficient time to act upon the notice.
| 14 | | (d) If the holder of any property subject to the
provisions | 15 | | of this Section knows that a potential beneficiary has been
| 16 | | convicted of financial
exploitation, abuse, or neglect of an | 17 | | elderly person or a person with a
disability or has been found | 18 | | by a preponderance of the evidence to be civilly liable for | 19 | | financial exploitation within
the scope of this Section, the | 20 | | holder shall fully cooperate
with law enforcement authorities | 21 | | and judicial officers in
connection with any investigation of | 22 | | the financial
exploitation, abuse, or neglect. If the holder is | 23 | | a person or entity that is
subject to regulation by a | 24 | | regulatory agency pursuant to the laws of this or
any other | 25 | | state or pursuant to the laws of the United States, including | 26 | | but not
limited to the business of a financial institution, |
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| 1 | | corporate fiduciary, or
insurance company, then such person or | 2 | | entity shall not be deemed to be in
violation of this Section | 3 | | to the extent that privacy laws and regulations
applicable to | 4 | | such person or entity prevent it from voluntarily providing law
| 5 | | enforcement authorities or judicial officers with information.
| 6 | | (e) A civil action against a person for financial | 7 | | exploitation may be brought, pursuant to this Section, after | 8 | | the death of the victim or during the lifetime of the victim if | 9 | | the victim is adjudicated disabled. A guardian is under no duty | 10 | | to bring a civil action under this subsection during the ward's | 11 | | lifetime, but may do so if the guardian believes it is in the | 12 | | best interests of the ward. | 13 | | (f) The court may, in its discretion, consider such facts | 14 | | and circumstances as it deems appropriate to allow the person | 15 | | found civilly liable for financial exploitation to receive a | 16 | | reduction in interest or benefit rather than no interest or | 17 | | benefit as stated under subsection (b) of this Section. | 18 | | (Source: P.A. 96-1551, Article 1, Section 995, eff. 7-1-11; | 19 | | 96-1551, Article 10, Section 10-155, eff. 7-1-11; 97-1109, eff. | 20 | | 1-1-13; 97-1150, eff. 1-25-13.)
| 21 | | (755 ILCS 5/2-6.6)
| 22 | | Sec. 2-6.6. Person convicted of or found civilly liable for | 23 | | certain offenses against the elderly or
a person with a | 24 | | disability disabled . | 25 | | (a) A person who is convicted of a violation of Section |
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| 1 | | 12-19, 12-21, 16-1.3, or 17-56, or subsection (a) or (b) of | 2 | | Section 12-4.4a, of the Criminal Code of 1961 or the Criminal | 3 | | Code of 2012 or a person who has been found by a preponderance | 4 | | of the evidence to be civilly liable for financial | 5 | | exploitation, as defined in subsection (a) of Section 2-6.2 of | 6 | | this Act, may not receive any property, benefit, or
other | 7 | | interest by reason of the death of the victim of that offense, | 8 | | whether as
heir, legatee, beneficiary, joint tenant, tenant by | 9 | | the entirety, survivor,
appointee, or in any other capacity and | 10 | | whether the property, benefit, or other
interest passes | 11 | | pursuant to any form of title registration, testamentary or
| 12 | | nontestamentary instrument, intestacy, renunciation, or any | 13 | | other circumstance. Except as provided in subsection (f) of | 14 | | this Section, the
The property, benefit, or other interest | 15 | | shall pass as if the person convicted
of a violation of Section | 16 | | 12-19, 12-21, 16-1.3, or 17-56, or subsection (a) or (b) of | 17 | | Section 12-4.4a, of the Criminal Code of 1961 or the Criminal | 18 | | Code of 2012 or the person found by a preponderance of the | 19 | | evidence to be civilly liable for financial exploitation, as | 20 | | defined in subsection (a) of Section 2-6.2 of this Act,
died | 21 | | before the decedent; provided that with respect to joint | 22 | | tenancy property
or property held in tenancy by the entirety, | 23 | | the interest possessed prior to
the death by the person | 24 | | convicted or found civilly liable may not
be diminished by the | 25 | | application of this Section. Notwithstanding the
foregoing, a | 26 | | person convicted of a violation of Section 12-19, 12-21, |
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| 1 | | 16-1.3, or 17-56, or subsection (a) or (b) of Section 12-4.4a,
| 2 | | of the Criminal Code of 1961 or the Criminal Code of 2012 or a | 3 | | person who has been found by a preponderance of the evidence to | 4 | | be civilly liable for financial exploitation, as defined in | 5 | | subsection (a) of Section 2-6.2 of this Act, shall be entitled | 6 | | to receive property, a
benefit, or an interest in any capacity | 7 | | and under any circumstances described
in this Section if it is | 8 | | demonstrated by clear and convincing evidence that the
victim | 9 | | of that offense knew of the conviction or finding of civil | 10 | | liability and subsequent to the
conviction or finding of civil | 11 | | liability expressed or ratified his or her intent to transfer | 12 | | the property,
benefit, or interest to the person convicted of a | 13 | | violation of Section 12-19,
12-21, 16-1.3, or 17-56, or | 14 | | subsection (a) or (b) of Section 12-4.4a, of the Criminal Code | 15 | | of 1961 or the Criminal Code of 2012 or the person found by a | 16 | | preponderance of the evidence to be civilly liable for | 17 | | financial exploitation, as defined in subsection (a) of Section | 18 | | 2-6.2 of this Act, in any manner contemplated
by this Section.
| 19 | | (b) The holder of any property subject to the provisions of | 20 | | this Section
is not liable for distributing or releasing the | 21 | | property to the person
convicted of violating Section 12-19, | 22 | | 12-21, 16-1.3, or 17-56, or subsection (a) or (b) of Section | 23 | | 12-4.4a, of the Criminal
Code of 1961 or the Criminal Code of | 24 | | 2012 or to the person found by a preponderance of the evidence | 25 | | to be civilly liable for financial exploitation as defined in | 26 | | subsection (a) of Section 2-6.2 of this Act .
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| 1 | | (c) If the holder is a financial institution, trust | 2 | | company, trustee, or
similar entity or person, the holder shall | 3 | | not be liable for any distribution
or
release of the property, | 4 | | benefit, or other interest to the person convicted of
a | 5 | | violation of Section 12-19, 12-21, 16-1.3, or 17-56, or | 6 | | subsection (a) or (b) of Section 12-4.4a, of the Criminal Code | 7 | | of 1961 or the Criminal Code of 2012 or person found by a | 8 | | preponderance of the evidence to be civilly liable for | 9 | | financial exploitation, as defined in subsection (a) of Section | 10 | | 2-6.2 of this Act,
unless the holder knowingly distributes or | 11 | | releases the property, benefit, or
other interest to the person | 12 | | so convicted or found civilly liable after first having | 13 | | received actual
written notice of the conviction or finding of | 14 | | civil liability in sufficient time to act upon the notice.
| 15 | | (d) The Department of State Police shall have access to | 16 | | State of Illinois
databases containing information that may | 17 | | help in the identification or
location of persons convicted of | 18 | | or found civilly liable for the offenses enumerated in this | 19 | | Section.
Interagency agreements shall be implemented, | 20 | | consistent with security and
procedures established by the | 21 | | State agency and consistent with the laws
governing the | 22 | | confidentiality of the information in the databases. | 23 | | Information
shall be used only for administration of this | 24 | | Section.
| 25 | | (e) A civil action against a person for financial | 26 | | exploitation, as defined in subsection (a) of Section 2-6.2 of |
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| 1 | | this Act, may be brought, pursuant to this Section, after the | 2 | | death of the victim or during the lifetime of the victim if the | 3 | | victim is adjudicated disabled. A guardian is under no duty to | 4 | | bring a civil action under this subsection during the ward's | 5 | | lifetime, but may do so if the guardian believes it is in the | 6 | | best interests of the ward. | 7 | | (f) The court may, in its discretion, consider such facts | 8 | | and circumstances as it deems appropriate to allow the person | 9 | | convicted or found civilly liable for financial exploitation, | 10 | | as defined in subsection (a) of Section 2-6.2 of this Act, to | 11 | | receive a reduction in interest or benefit rather than no | 12 | | interest or benefit as stated under subsection (a) of this | 13 | | Section. | 14 | | (Source: P.A. 96-1551, Article 1, Section 955, eff. 7-1-11; | 15 | | 96-1551, Article 10, Section 10-155, eff. 7-1-11; 97-1109, eff. | 16 | | 1-1-13; 97-1150, eff. 1-25-13.)
| 17 | | Section 99. Effective date. This Act takes effect upon | 18 | | becoming law.".
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