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HB4649 Enrolled LRB104 17337 KTG 30761 b
1 AN ACT concerning aging.
2 Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4 Section 5. The Adult Protective Services Act is amended by
5 changing Sections 13 and 13.5 as follows:
6 (320 ILCS 20/13)
7 Sec. 13. Access.
8 (a) In accord with established law and Department
9 protocols, procedures, and policies, the designated provider
10 agencies shall have access to eligible adults who have been
11 reported or found to be victims of abuse, abandonment,
12 neglect, financial exploitation, or self-neglect in order to
13 assess the validity of the report, assess other needs of the
14 eligible adult, and provide services in accordance with this
15 Act.
16 (a-5) A representative of the Department or a designated
17 provider agency that is actively involved in an abuse,
18 abandonment, neglect, financial exploitation, or self-neglect
19 investigation under this Act shall be allowed access to the
20 financial records, mental and physical health records, and
21 other relevant evaluative records of the eligible adult which
22 are in the possession of any individual, financial
23 institution, health care provider, mental health provider,
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1 educational facility, or other facility if necessary to
2 complete the investigation mandated by this Act. The provider
3 or facility shall provide such records to the representative
4 upon receipt of a written request and certification from the
5 Department or designated provider agency that an investigation
6 is being conducted under this Act and the records are
7 pertinent to the investigation.
8 Any records received by such representative, the
9 confidentiality of which is protected by another law or rule,
10 shall be maintained as confidential, except for such use as
11 may be necessary for any administrative or other legal
12 proceeding.
13 (b) Where access to an eligible adult is denied, including
14 the refusal to provide requested records, the Office of the
15 Attorney General, the Department, or the provider agency may
16 petition the court for an order to require appropriate access
17 where:
18 (1) a caregiver or third party has interfered with the
19 assessment or service plan, or
20 (2) the agency has reason to believe that the eligible
21 adult is denying access because of coercion, extortion, or
22 justifiable fear of future abuse, abandonment, neglect, or
23 financial exploitation.
24 (c) The petition for an order requiring appropriate access
25 shall be afforded an expedited hearing in the circuit court.
26 (d) If the provider agency has substantiated financial
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1 exploitation against an eligible adult, and has documented a
2 reasonable belief that the eligible adult will be irreparably
3 harmed as a result of the financial exploitation, the Office
4 of the Attorney General, the Department, or the provider
5 agency may petition for a temporary restraining order or any
6 other relief outlined in subsection (e) an order freezing the
7 assets of the eligible adult. The petition shall be filed in
8 the county or counties in which the assets are located. The
9 court's order shall prohibit the sale, gifting, transfer, or
10 wasting of the assets of the eligible adult, both real and
11 personal, owned by, or vested in, the eligible adult, without
12 the express permission of the court. The petition to freeze
13 the assets of the eligible adult shall be afforded an
14 expedited hearing in the circuit court.
15 (e) Temporary restraining order; service; hearing.
16 (1)(A) The court may grant a temporary restraining
17 order ex parte, pending a full hearing, and may grant such
18 relief as the court deems proper if the court finds that:
19 (i) An immediate and present danger of
20 exploitation of the eligible adult exists.
21 (ii) There is a likelihood of irreparable harm and
22 nonavailability of an adequate remedy at law.
23 (iii) There is a substantial likelihood of success
24 on the merits.
25 (iv) The threatened injury to the eligible adult
26 outweighs possible harm to the respondent.
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1 (v) Granting a temporary restraining order will
2 not disserve the public interest.
3 (vi) The temporary restraining order provides for
4 the eligible adult's physical or financial safety.
5 (B) Such relief the court deems proper may include,
6 but is not limited to, any of the following:
7 (i) Restraining the respondent from committing any
8 acts of exploitation against the eligible adult.
9 (ii) Awarding to the eligible adult the temporary
10 exclusive use and possession of the dwelling that the
11 eligible adult and the respondent share, or barring
12 the respondent from the residence of the eligible
13 adult. The court shall confirm the availability of any
14 required services or alternative caregivers that may
15 be necessary to ensure the eligible adult's safety.
16 (iii) Freezing any assets of the eligible adult in
17 any depository or financial institution whether titled
18 solely in the eligible adult's name, solely in the
19 respondent's name, jointly with the respondent, in
20 guardianship, in trust, or in a Totten trust, provided
21 that:
22 (I) Assets held by a guardian for the eligible
23 adult may be frozen only by an order entered by the
24 court overseeing the guardianship proceeding.
25 (II) Assets held by a trust may be frozen only
26 by an order of the court if all the trustees of the
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1 trust are served with process and are given
2 reasonable notice before any hearing on the
3 petition.
4 (III) Assets held solely in the name of the
5 respondent may only be frozen on an ex parte basis
6 if the petition and affidavit demonstrate to the
7 court probable cause that such assets are
8 traceable to the unlawful exploitation of the
9 eligible adult, that such assets are likely to be
10 returned to the eligible adult after a final
11 evidentiary hearing, and that no other adequate
12 remedy at law is reasonably available.
13 (iv) Freezing any line of credit of the eligible
14 adult at any depository or financial institution
15 whether listed solely in the eligible adult's name or
16 jointly with the eligible adult.
17 (I) Lines of credit held by a guardian for the
18 eligible adult may be frozen only by an order
19 entered by the court overseeing the guardianship
20 proceeding.
21 (II) Lines of credit held by a trust may be
22 frozen only by an order of the court if all the
23 trustees of the trust are served with process and
24 are given reasonable notice before any hearing on
25 the petition.
26 (v) Prohibiting the respondent from having direct
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1 or indirect contact with the eligible adult.
2 (vi) Providing directives to law enforcement
3 agencies.
4 (vii) If the court has ordered an asset and credit
5 freeze, ordering that specified living expenses of the
6 eligible adult continue to be paid.
7 (2) In a hearing ex parte for the purpose of obtaining
8 an ex parte temporary restraining order, the petitioner
9 can present any relevant evidence, including, but not
10 limited to, verified pleadings, affidavits, police
11 reports, medical reports, financial records, verbal
12 testimony, still photos, audio recordings, and video
13 recordings.
14 (3) A denial of a petition for an ex parte temporary
15 restraining order must be by written order and must note
16 the legal grounds for denial. When the only ground for
17 denial is failure to demonstrate appearance of an
18 immediate and present danger of exploitation of an
19 eligible adult, the court must set a full hearing on the
20 petition for a temporary restraining order at the earliest
21 possible date. Nothing in this paragraph affects a
22 petitioner's right to promptly amend any petition
23 consistent with court rules.
24 (4) An ex parte temporary restraining order may be in
25 effect for a fixed period not to exceed 15 days unless good
26 cause is shown to extend the order. The ex parte temporary
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1 restraining order may be extended one time for up to an
2 additional 30 days. A full hearing, as provided by this
3 Section, must be set for a date no later than the date when
4 the ex parte temporary restraining order ceases to be in
5 effect.
6 (f) Reasonable cause. In determining whether a petitioner
7 has reasonable cause to believe that the eligible adult is, or
8 is in imminent danger of becoming, a victim of exploitation,
9 the court shall consider and evaluate all relevant factors,
10 including, but not limited to, any of the following:
11 (1) The existence of a verifiable order of protection
12 issued previously or from another jurisdiction.
13 (2) Any history of exploitation by the respondent upon
14 the eligible adult in the petition or any other eligible
15 adult.
16 (3) Any history of the eligible adult being previously
17 exploited or unduly influenced.
18 (4) The capacity of the eligible adult to make
19 decisions related to his or her finances and property.
20 (5) Susceptibility of the eligible adult to undue
21 influence.
22 (6) Any criminal history of the respondent or previous
23 probable cause findings by the adult protective services
24 program, if known.
25 (g) Notice of petition and restraining order.
26 (1) The respondent shall be personally served, in
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1 accordance with Section 2-203 of the Code of Civil
2 Procedure, with a copy of the petition, notice of hearing,
3 and temporary restraining order, if any, before the final
4 hearing.
5 (2) If the petitioner is acting in a representative
6 capacity, the eligible adult shall also be served with a
7 copy of the petition, notice of hearing, and temporary
8 restraining order, if any, before the final hearing.
9 (3) If any assets or lines of credit are ordered to be
10 frozen, the depository or financial institution must be
11 served as provided in Section 2-204 of the Code of Civil
12 Procedure.
13 (h) Final hearing on petition.
14 (1)(A) The court may grant such relief as the court
15 deems proper when, upon notice and hearing, it appears to
16 the court that:
17 (i) The eligible adult is the victim of
18 exploitation or that the eligible adult is in imminent
19 danger of becoming a victim of exploitation.
20 (ii) There is a likelihood of irreparable harm and
21 nonavailability of an adequate remedy at law.
22 (iii) The threatened injury to the eligible adult
23 outweighs possible harm to the respondent.
24 (iv) Where the restraining order freezes assets of
25 the respondent, the court finds probable cause that
26 exploitation has occurred, the freeze only affects the
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1 proceeds of such exploitation, and there is a
2 substantial likelihood that such assets will be
3 ordered to be returned to the eligible adult.
4 (v) The relief provides for the eligible adult's
5 physical or financial safety.
6 (B) Such relief may include, but need not be limited
7 to, any of the following:
8 (i) Continuing the temporary restraining order in
9 part or in whole.
10 (ii) Restraining the respondent from committing
11 any acts of exploitation.
12 (iii) Awarding to the eligible adult the exclusive
13 use and possession of the dwelling that the eligible
14 adult and the respondent share or excluding the
15 respondent from the residence of the eligible adult.
16 The court shall confirm the availability of any
17 required services or alternative caregivers that may
18 be necessary to ensure the eligible adult's safety.
19 (iv) Ordering the respondent to participate in
20 treatment, intervention, or counseling services to be
21 paid for by the respondent.
22 (v) Directing that assets under temporary freeze
23 by a restraining order be returned to the eligible
24 adult, or directing that those assets remain frozen
25 until ownership can be determined; and directing that
26 the temporary freeze on any line of credit be lifted.
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1 (vi) Where the court has found that the respondent
2 has engaged in exploitation of the eligible adult,
3 entering a final cost judgment against the respondent
4 and in favor of the petitioner for all taxable costs
5 and damages.
6 (vii) Ordering such other relief as the court
7 deems necessary for the protection of a victim of
8 exploitation, including injunctions or directives to
9 law enforcement agencies, as provided in this Section.
10 (2) The court must allow an advocate to accompany and
11 be present with the petitioner or the respondent in order
12 to provide emotional support during any court proceedings
13 or hearings related to the temporary restraining order, if
14 the petitioner or the respondent has made such a request
15 and the advocate is able to be present.
16 (3) The terms of a temporary restraining order as
17 provided in paragraph (1) remain in effect until the
18 temporary restraining order is modified or dissolved.
19 (i) Provisions required in any temporary restraining
20 order, preliminary injunction, or permanent injunction. If the
21 court enters a temporary restraining order, preliminary
22 injunction, or permanent injunction, the court is required to
23 make specific findings on the record. The temporary
24 restraining order, preliminary injunction, or permanent
25 injunction must, on its face, indicate:
26 (1) That the temporary restraining order, preliminary
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1 injunction, or permanent injunction is valid and
2 enforceable in all counties of this State.
3 (2) That the court had jurisdiction over the parties
4 and subject matter under State law and that reasonable
5 notice and opportunity to be heard were given to the
6 person against whom the temporary restraining order,
7 preliminary injunction, or permanent injunction was
8 sought, in a manner that was sufficient to protect that
9 person's right to due process.
10 (3) If any assets or lines of credit are ordered to be
11 frozen, the date that the depository or financial
12 institution was served with the temporary restraining
13 order, preliminary injunction, or permanent injunction as
14 provided in Section 2-204 of the Code of Civil Procedure.
15 (4) The date the respondent was served with the
16 petition for a temporary restraining order, preliminary
17 injunction, or permanent injunction.
18 (j) Service.
19 (1) The petitioner shall furnish a copy of the
20 petition, the financial affidavit, the notice of hearing,
21 and any temporary restraining order to the sheriff or
22 special process server of the county in which the
23 respondent resides or can be found, who shall serve it
24 upon the respondent as soon thereafter as possible on any
25 day of the week and at any time of the day or night. The
26 petitioner may transmit a facsimile copy of a temporary
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1 restraining order and this facsimile copy may be served in
2 the same manner as a certified copy.
3 (2) If the respondent has been previously served with
4 the temporary restraining order and has failed to appear
5 at the initial hearing on the temporary restraining order,
6 any subsequent petition for a temporary restraining order
7 or preliminary injunction seeking an extension of time may
8 be served on the respondent by the petitioner or the
9 petitioner's attorney via certified mail in lieu of
10 personal service by a law enforcement officer.
11 (3)(A) Within 24 hours after the court issues a
12 temporary restraining order, preliminary injunction, or
13 permanent injunction to protect an eligible adult against
14 exploitation or changes, continues, extends, or vacates
15 such an order or injunction, the petitioner or the
16 petitioner's attorney must forward a certified copy of the
17 temporary restraining order, preliminary injunction, or
18 permanent injunction to the sheriff with jurisdiction over
19 the residence of the respondent for service in accordance
20 with this subsection.
21 (B) Within 24 hours after the sheriff receives a
22 certified copy of the temporary restraining order,
23 preliminary injunction, or permanent injunction to protect
24 an eligible adult against exploitation, the sheriff must
25 make information related to the order or injunction
26 available to this State's law enforcement agencies by
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1 electronically transmitting such information to the
2 Illinois State Police.
3 (C) Within 24 hours after the sheriff or special
4 process server has made service upon the respondent and
5 the sheriff has been so notified, the sheriff must make
6 information relating to the service available to other law
7 enforcement agencies by electronically transmitting such
8 information to the Illinois State Police.
9 (D) Within 24 hours after a temporary restraining
10 order, preliminary injunction, or permanent injunction is
11 terminated or otherwise rendered no longer effective by
12 ruling of the court, the petitioner or petitioner's
13 attorney must notify the sheriff receiving original
14 notification of the temporary restraining order,
15 preliminary injunction, or permanent injunction as
16 provided in subparagraph (A). The sheriff shall, within 24
17 hours after receiving such notification from the
18 petitioner or the petitioner's attorney, notify the
19 Illinois State Police of such court action.
20 (k) Enforcement.
21 (1) As to the respondent, the court may enforce a
22 violation of a temporary restraining order, preliminary
23 injunction, or permanent injunction issued to protect an
24 eligible adult against exploitation through a civil or
25 criminal contempt proceeding.
26 (2) If the respondent is arrested by a law enforcement
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1 officer, the respondent must be held in custody until he
2 or she is brought before the court, which must occur as
3 expeditiously as possible, for the purpose of enforcing
4 the temporary restraining order, preliminary injunction,
5 or permanent injunction and for admittance to bail in
6 accordance with the applicable rules of criminal
7 procedure, pending a hearing.
8 (l) Judgment for damages. Actual damages may be assessed
9 against the petitioner in a proceeding under this Section if
10 the court finds that the petition lacks substantial factual or
11 legal support.
12 (m) Modification or dissolution of a temporary restraining
13 order, preliminary injunction, or permanent injunction. The
14 petitioner, respondent, or eligible adult may move at any time
15 to modify or dissolve the temporary restraining order,
16 preliminary injunction, or permanent injunction in part or in
17 whole. No specific allegations are required for modification
18 or dissolution of the temporary restraining order, preliminary
19 injunction, or permanent injunction, which may be granted in
20 addition to other civil or criminal penalties. The court shall
21 promptly hear a motion to modify or dissolve a temporary
22 restraining order, preliminary injunction, or permanent
23 injunction.
24 (Source: P.A. 102-244, eff. 1-1-22.)
25 (320 ILCS 20/13.5)
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1 Sec. 13.5. Commencement of action for access; filing fees;
2 process; notice; duration of orders.
3 (a) Actions for orders seeking access to an eligible adult
4 or for any other relief outlined in subsection (e) of Section
5 13 freezing assets of an eligible adult are commenced:
6 (1) independently, by filing a petition for access to
7 an eligible adult or freezing the assets of an eligible
8 adult in the circuit court;
9 (2) in conjunction with other civil proceedings, by
10 filing a petition for access to an eligible adult or
11 freezing the assets of an eligible adult under the same
12 case number as another civil proceeding involving the
13 parties, including, but not limited to:
14 (i) a guardianship proceeding under the Probate
15 Act of 1975;
16 (ii) a proceeding for involuntary commitment under
17 the Mental Health and Developmental Disabilities Code;
18 (iii) any other proceeding, provided that the
19 eligible adult or the respondent is a party to or the
20 subject of that proceeding.
21 (b) No fee shall be charged by the clerk for filing
22 petitions or certifying orders. No fee shall be charged by a
23 sheriff for service by the sheriff of such a petition, rule,
24 motion, or order in an action commenced under this Section.
25 (c) Any action for an order for access to an eligible adult
26 or freezing assets of an eligible adult, whether commenced
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1 independently or in conjunction with another proceeding, is a
2 distinct cause of action and requires that a separate summons
3 be issued and served, except that in pending cases the
4 following methods may be used:
5 (1) Delivery of the summons to respondent personally
6 in open court in pending civil or criminal cases.
7 (2) Mailing to the respondent defendant, or, if
8 represented, to the respondent's defendant's attorney of
9 record in the civil cases in which the defendant has filed
10 a general appearance. The summons shall be in the form
11 prescribed by subsection (d) of Supreme Court Rule 101,
12 except that it shall require the respondent to answer or
13 appear within 7 days. Attachments to the summons or notice
14 shall include the petition for access to an eligible adult
15 or freezing assets of an eligible adult and supporting
16 affidavits, if any, and any emergency order for access to
17 an eligible adult or freezing assets of an eligible adult
18 that has been issued.
19 (d) Summons may be served by a private person over 18 years
20 of age and not a party to the action. The return by that
21 private person shall be by affidavit. The summons may be
22 served by a sheriff or other law enforcement officer, and if
23 summons is placed for service by the sheriff, it shall be made
24 at the earliest time practicable and shall take precedence
25 over other summonses except those of a similar emergency
26 nature.
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1 (e) Except as otherwise provided in this Section, notice
2 of hearings on petitions or motions shall be served in
3 accordance with Supreme Court Rules 11 and 12 unless notice is
4 excused by the Code of Civil Procedure, Supreme Court Rules,
5 or local rules, as now or hereafter amended.
6 (f) Original notice of a hearing on a petition for access
7 to an eligible adult or freezing assets of an eligible adult
8 may be given, and the documents served, in accordance with
9 Supreme Court Rules 11 and 12. When, however, an emergency
10 order is sought in such a case on an ex parte application, the
11 notice rules set forth in Section 11-101 of the Code of Civil
12 Procedure shall apply.
13 (g) An order entered in accordance with Sections 13 and
14 13.5 shall be valid for a fixed period of time, not to exceed 2
15 years.
16 (Source: P.A. 91-731, eff. 6-2-00.)
17 Section 10. The Code of Civil Procedure is amended by
18 adding Section 2-203.3 as follows:
19 (735 ILCS 5/2-203.3 new)
20 Sec. 2-203.3. Service on third party platform; financial
21 exploitation. In cases of financial exploitation where the
22 alleged perpetrator is unknown or unascertainable, such that
23 service is impracticable under items (1) and (2) of subsection
24 (a) of Section 2-203, service upon the alleged perpetrator may
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1 be made on the platform or third party through which the
2 alleged financial exploitation occurred. Notice shall be
3 provided by the same method used by the alleged perpetrator to
4 communicate with the protected party, and documentation of
5 identifying information and all service attempts shall be
6 filed with the court. The court may order any further
7 reasonable measures to effectuate notice and provide an
8 opportunity to be heard.Every fact on this page links to its source, starting with the official bill record.