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NOTEWORTHY GUARDIANSHIP CASES In re Estate of Hoellen v. Owsley, 367 Ill. App. 3d 240 (1st Dist. 2006), appeal denied, 222 Ill. 2d 573 (2006). The Public Guardian filed a lawsuit on behalf of his ward, 89 year-old Theodore Hoellen, who suffered from dementia. The lawsuit alleged that a Chicago police officer, Donald Owsley, financially exploited Mr. Hoellen by having him name Owsley beneficiary of all his money and property. After a hearing, the trial court found that Owsley “had used his position as a Chicago police officer to gain Hoellen’s trust, exert undue influence over him, and then flagrantly and intentionally breach the fiduciary duty he owed him.” The trial court vacated Owsley’s interests in Mr. Hoellen’s money and property and awarded the estate $50,000 in punitive damages in order to deter other people holding positions of public trust from financially exploiting vulnerable senior citizens. Owsley appealed the trial court’s rulings. The Illinois Appellate Court affirmed the trial court’s rulings finding that it could not think of a situation more deserving of punitive damages that this one in order to deter others who might consider duping a senile and lonely elderly man. The Illinois Supreme Court declined to review the case. For full text of opinion
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here. Pending bills Small Trust Termination Creates 760 ILCS 5/4.26, which allows termination of a trust where its market value is less than $100,000 and the costs of continuing the trust “will substantially impair accomplishment of the purpose of the trust.” The determination lies in the trustee’s sole discretion with the consent of the recipients. This new section sets forth provisions for the distribution of such a small trust estate. This termination provision does “not apply to the extent that it would cause a trust otherwise qualifying for a federal or State tax benefit or other benefit not to so qualify[.]” The termination provision applies to all trusts, whether created prior or subsequent to the effective date of the Act. Synopsis as provided by Illinois general assembly For full text of bill click
here. Adds Section 15 to the Elder Abuse and Neglect Act. Section 15 provides for the establishment of regional interagency elder abuse fatality teams to review cases of death of persons 60 years or older living in domestic situations involving (1) blunt force or trauma, (2) undetermined or suspicious causes of death, (3) requests by the deceased’s physician, (4) referrals from a health care provider or (5) open or closed cases from a senior protective services agency, law enforcement agency, or State's Attorney's office that involve alleged or suspected abuse, neglect, or financial exploitation. Provides for confidentiality of team communications, but recommendations of the team may be disclosed. Synopsis as provided by Illinois general assembly For full text of bill click here. Immediate Response to Reports of Suspected Abuse Amends the Elder Abuse and Neglect Act, 320 ILCS 20/3(c), to provide that provider agencies shall respond to reports of alleged or suspected abuse that place an eligible adult at risk of injury or death on an emergency basis in accordance with Department of Aging administrative rules, and shall ensure that such response may occur 24 hours a day, 7 days a week. An agency may use an on-call system to respond after hours/on weekends. Synopsis as provided by Illinois general assembly For full text of bill click here. Recently Passed Legislation Disabled Person, Defined The Probate Act was amended by the addition of subparagraph (d), which defines a disabled person as someone over 18 years of age who “is diagnosed with fetal alcohol syndrome or fetal alcohol effects.” Synopsis as provided by Illinois general assembly For full text of legislation click here. Statutory Custodial Claims The Probate Act is amended as follows: (1) 755 ILCS 5/2-6.2 is amended to provide that “persons convicted of financial exploitation, abuse, or neglect of an elderly person or a person with a disability shall not receive any property, benefit, or other interest by reason of the death of that elderly person or person with a disability as . . . [a] claimant under Section 18-1.1[.]” (2) 755 ILCS 5/18-1.1 is amended as follows: (a) the Probate Decedent’s Estate Court is provided with new guidelines to consider when disallowing or adjusting its award of a statutory custodial claim, including but not limited to consideration of the “extent that the living arrangements were intended to and did in fact also provide a physical or financial benefit to the claimant;” and (b) the amounts awarded under a statutory custodial claim are increased from the range of $25,000 to $100,000 to the new range of $45,000 to $180,000. Synopsis as provided by Illinois general assembly For full text of legislation click here. Tax Deeds: Notice, Possession, and Contestability Amends the Property Tax Code as it relates to proceedings for tax deeds: (1) The notice serving period and time frame for a tax purchaser to file a petition for tax deed is increased from ‘not less than 3 months nor more than 5 months prior to the expiration of the redemption period’ to ‘not less than 3 months nor more than 6 months prior to the expiration of the redemption period.’ (2) The notice serving provisions during the 3 to 6 month window described above are amended to require tax purchasers to serve certain notices in the manner provided under Sections 2-203, 2-204, 2-205.1 and 2-211 of the Code of Civil Procedure. (3) Expands the tax deed grantee’s right to possession of the property obtained pursuant to the issuance of a tax deed to include the tax deed grantee’s “successor in interest.” (4) Codifies a recent Illinois Supreme Court decision that held tax deeds are contestable by motions filed pursuant to 735 ILCS 5/2-1203 within 30 days after entry of the order issuing the tax deed. Synopsis as provided by Illinois general assembly For full text of legislation click here. Procurement of Title Insurance Creates 215 ILCS 155/18.1, which provides that no lender or ‘producer of title business’ may condition any loan or service by requiring a party (who is obligated to furnish and pay for title insurance) to a contract for sale of residential real estate to procure title insurance from a certain company or agent other than the company or agent chosen by that party. Synopsis as provided by Illinois general assembly For full text of legislation click here. DHS – Inspector General Powers Adds Section 1-17 to the Human Services Act, 20 ILCS 1305/1-17, creating an Inspector General of the Department of Human Services to investigate reports of abuse or neglect of patients or residents in any mental health or developmental disabilities facility licensed, certified or funded by DHS. The Inspector General shall also have the authority to investigate alleged or suspected abuse, neglect or exploitation of adults with disabilities living in domestic settings in the community. Requires the Inspector General to promulgate rules addressing 1) requirements for reporting and investigating abuse and neglect, 2) coordination of investigations between Departments and within Divisions of DHS, and 3) criteria for conducting investigations. Provides that certain professionals are “required reporters” of abuse and neglect. The Inspector General is to submit reports and recommendations to DHS, and shall work with DHS regarding implementation of recommendations. The Inspector General is granted access to facilities, and can recommended closure of facilities and/or units. Requires the Inspector General to report the individuals against whom there has been a substantiated finding of abuse or egregious neglect to the Department of Public Health’s health care worker registry. Sets forth procedures for notice to the health care worker and appeals process, including rulemaking authority to the Department of Human Services. Creates the Quality Care Board to monitor and oversee the operations, policies and procedures of the Inspector General, provide consultation to the Inspector General, review regulations, and recommend policies. Grants the Inspector General subpoena powers. Requires the Inspector General to submit an annual report to the General Assembly and Governor, summarizing the investigations. Amends the Mental Health and Developmental Disabilities Administrative Act, the Abused and Neglected Long Term Care Facility Residents Reporting Act, Nursing Home Care Act, Healthcare Worker Background Check Act, to replace “nurse aide,” with “health care worker.” Synopsis as provided by Illinois general assembly For full text of legislation click here. Community Care Programming Advisory Committee
Amends the provisions in the Act on Aging, 20 ILCS 105/4.02, to redefine the membership of the Community Care Programming Advisory Committee. The amendment removes requirements for specific numbers of members from certain fields and instead requires that representatives shall be appointed to ensure representation from community care providers. Synopsis as provided by Illinois general assembly For full text of legislation click here. Assessment of GAL/Legal Fees Subsection (c) of 755 ILCS 5/11a-10 is amended to provide that in cases where the petitioner for guardianship is the Department of Human Services Office of Inspector General, as per Section 45 (b) of the Abuse of Adults with Disabilities Intervention Act, no guardian ad litem or legal fees may be assessed against said Department. Synopsis as provided by Illinois general assembly For full text of legislation click here. Provisions Regarding Electroconvulsive Therapy and
Psychotropic Medication Amends the Mental Health and Developmental Disabilities Code. Changes references from “authorized involuntary treatment” to “electroconvulsive therapy or psychotropic medication.” Provides that an adult recipient of mental health services, or the recipient's guardian, and the recipient's substitute decision maker must be informed of the recipient's right to refuse electroconvulsive therapy. Provides that a court may, in its discretion, appoint a guardian ad litem for a recipient before the court or authorize an existing guardian of the person to monitor treatment and compliance with court orders in connection with the administration of psychotropic medication and electroconvulsive therapy. Provides that upon the commencement of mental health services, or as soon thereafter as the condition of the recipient permits, the facility must advise the recipient as to the circumstances under which the law permits the use of electroconvulsive therapy. Amends the Clerks of Courts Act and the Health Care Surrogate Act to make conforming changes. Synopsis as provided by Illinois general assembly For full text of legislation click here. For a law journal article about this legislation authored by Charles P. Golbert, the Deputy of the Public Guardian’s Adult Guardianship Division, click here. |
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