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| Public Act 098-0562 | ||||
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AN ACT concerning civil law.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 5. The Illinois Power of Attorney Act is amended by | ||||
changing Sections 2-7 and 2-10 as follows:
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(755 ILCS 45/2-7) (from Ch. 110 1/2, par. 802-7)
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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,
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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.
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(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 Elder Abuse and Neglect 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; or | ||
(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 elder abuse | ||
provider agency, the State Guardian, the public guardian, or | ||
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 elder abuse provider agency, the State | ||
Guardian, the public guardian, or 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. 96-1195, eff. 7-1-11.)
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(755 ILCS 45/2-10) (from Ch. 110 1/2, par. 802-10)
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Sec. 2-10. Agency-court relationship. | ||
(a) Upon petition by any interested
person (including the | ||
agent), with such notice to interested persons as the
court | ||
directs and a finding by the court that the principal
lacks | ||
either the capacity to control or the capacity to revoke the | ||
agency, the court may construe a power of attorney, review the | ||
agent's conduct, and grant appropriate relief including | ||
compensatory damages. | ||
(b) If the court finds
that the agent is not acting for the | ||
benefit of the principal in accordance
with the terms of the | ||
agency or that the agent's action or inaction has
caused or | ||
threatens substantial harm to the principal's person or | ||
property
in a manner not authorized or intended by the | ||
principal, the court may
order a guardian of the principal's | ||
person or estate to exercise any powers
of the principal under | ||
the agency, including the power to revoke the
agency, or may | ||
enter such other orders without appointment of a guardian as
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the court deems necessary to provide for the best interests of | ||
the
principal. | ||
(c) If the court finds that the agency requires
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interpretation, the court may construe the agency and instruct | ||
the agent,
but the court may not amend the agency. | ||
(d) If the court finds that the agent has not acted for the | ||
benefit of the principal in accordance with the terms of the | ||
agency and the Illinois Power of Attorney Act, or that the | ||
agent's action caused or threatened substantial harm to the | ||
principal's person or property in a manner not authorized or | ||
intended by the principal, then the agent shall not be | ||
authorized to pay or be reimbursed from the estate of the | ||
principal the attorneys' fees and costs of the agent in | ||
defending a proceeding brought pursuant to this Section. | ||
(e) Upon a finding that the agent's action has caused | ||
substantial harm to the principal's person or property, the | ||
court may assess against the agent reasonable costs and | ||
attorney's fees to a prevailing party who is a provider agency | ||
as defined in Section 2 of the Elder Abuse and Neglect Act, a | ||
representative of the Office of the State Long Term Care | ||
Ombudsman, the State Guardian, a public guardian, or a | ||
governmental agency having regulatory authority to protect the | ||
welfare of the principal. | ||
(f) As used in this Section, the term "interested person" | ||
includes (1) the principal or the agent; (2) a guardian of the | ||
person, guardian of the estate, or other fiduciary charged with | ||
management of the principal's property; (3) the principal's | ||
spouse, parent, or descendant; (4) a person who would be a | ||
presumptive heir-at-law of the principal; (5) a person named as | ||
a beneficiary to receive any property, benefit, or contractual | ||
right upon the principal's death, or as a beneficiary of a | ||
trust created by or for the principal; (6) a provider agency as | ||
defined in Section 2 of the Elder Abuse and Neglect Act, a | ||
representative of the Office of the State Long Term Care | ||
Ombudsman, the State Guardian, a public guardian, or a | ||
governmental agency having regulatory authority to protect the | ||
welfare of the principal; and (7) the principal's caregiver or | ||
another person who demonstrates sufficient interest in the | ||
principal's welfare. | ||
(g) Absent court order directing a
guardian to exercise | ||
powers of the principal under the agency, a guardian
will have | ||
no power, duty or liability with respect to any property | ||
subject
to the agency or any personal or health care matters | ||
covered by the agency. | ||
(h)
Proceedings under this Section shall be commenced in | ||
the county where the
guardian was appointed or, if no Illinois | ||
guardian is acting, then in the
county where the agent or | ||
principal resides or where the principal owns real property.
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(i) This Section shall not be construed to limit any other | ||
remedies available. | ||
(Source: P.A. 96-1195, eff. 7-1-11.)
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Section 99. Effective date. This Act takes effect upon | ||
becoming law.
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