HB4879 100TH GENERAL ASSEMBLY

LRB100 18307 JLS 33512 b

100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB4879

Introduced , by Rep. Ryan Spain

SYNOPSIS AS INTRODUCED:

755 ILCS 45/2-7

from Ch. 110 1/2, par. 802-7

Amends the Illinois Power of Attorney Act. Provides that if the agent fails to provide his or her record of all receipts, disbursements, and significant actions taken under the authority of the agency within 21 days after a request by specified persons, a representative of the Office of the State Long Term Care Ombudsman (rather than the State Long Term Care Ombudsman) may petition the court for an order requiring the agent to produce his or her record of receipts, disbursements, and significant actions. Provides that if the court finds that the agent's failure to provide his or her record in a timely manner to a representative of the Office of the State Long Term Care Ombudsman was without good cause, the court may assess reasonable costs and attorney's fees against the agent, and order such other relief as is appropriate.

A BILL FOR

AN ACT concerning civil law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Illinois Power of Attorney Act is amended by changing Section 2-7 as follows:

(755 ILCS 45/2-7) (from Ch. 110 1/2, par. 802-7)

Sec. 2-7. Duty - standard of care - record-keeping - exoneration.

(a) The agent shall be under no duty to exercise the powers granted by the agency or to assume control of or responsibility for any of the principal's property, care or affairs, regardless of the principal's physical or mental condition. Whenever a power is exercised, the agent shall act in good faith for the benefit of the principal using due care, competence, and diligence in accordance with the terms of the agency and shall be liable for negligent exercise. An agent who acts with due care for the benefit of the principal shall not be liable or limited merely because the agent also benefits from the act, has individual or conflicting interests in relation to the property, care or affairs of the principal or acts in a different manner with respect to the agency and the agent's individual interests. The agent shall not be affected by any amendment or termination of the agency until the agent has actual knowledge thereof. The agent shall not be liable for any loss due to error of judgment nor for the act or default of any other person.

(b) An agent that has accepted appointment must act in accordance with the principal's expectations to the extent actually known to the agent and otherwise in the principal's best interests.

(c) An agent shall keep a record of all receipts, disbursements, and significant actions taken under the authority of the agency and shall provide a copy of this record when requested to do so by:

(1) the principal, a guardian, another fiduciary acting on behalf of the principal, and, after the death of the principal, the personal representative or successors in interest of the principal's estate;

(2) a representative of a provider agency, as defined in Section 2 of the Adult Protective Services Act, acting in the course of an assessment of a complaint of elder abuse or neglect under that Act;

(3) a representative of the Office of the State Long Term Care Ombudsman, acting in the course of an investigation of a complaint of financial exploitation of a nursing home resident under Section 4.04 of the Illinois Act on the Aging;

(4) a representative of the Office of Inspector General for the Department of Human Services, acting in the course of an assessment of a complaint of financial exploitation of an adult with disabilities pursuant to Section 35 of the Abuse of Adults with Disabilities Intervention Act;

(5) a court under Section 2-10 of this Act; or

(6) a representative of the Office of State Guardian or public guardian for the county in which the principal resides acting in the course of investigating whether to file a petition for guardianship of the principal under Section 11a-4 or 11a-8 of the Probate Act of 1975.

(d) If the agent fails to provide his or her record of all receipts, disbursements, and significant actions within 21 days after a request under subsection (c), the adult abuse provider agency, the State Guardian, the public guardian, or a representative of the Office of the State Long Term Care Ombudsman may petition the court for an order requiring the agent to produce his or her record of receipts, disbursements, and significant actions. If the court finds that the agent's failure to provide his or her record in a timely manner to the adult abuse provider agency, the State Guardian, the public guardian, or a representative of the Office of the State Long Term Care Ombudsman was without good cause, the court may assess reasonable costs and attorney's fees against the agent, and order such other relief as is appropriate.

(e) An agent is not required to disclose receipts, disbursements, or other significant actions conducted on behalf of the principal except as otherwise provided in the power of attorney or as required under subsection (c).

(f) An agent that violates this Act is liable to the principal or the principal's successors in interest for the amount required (i) to restore the value of the principal's property to what it would have been had the violation not occurred, and (ii) to reimburse the principal or the principal's successors in interest for the attorney's fees and costs paid on the agent's behalf. This subsection does not limit any other applicable legal or equitable remedies.

(Source: P.A. 98-49, eff. 7-1-13; 98-562, eff. 8-27-13; 98-756, eff. 7-16-14.)