Public Act 098-0562

SB1280 Enrolled LRB098 08941 HEP 39073 b

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 Sections 2-7 and 2-10 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 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.)

(755 ILCS 45/2-10) (from Ch. 110 1/2, par. 802-10)

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

the court deems necessary to provide for the best interests of

the principal.

(c) If the court finds that the agency requires

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.

(i) This Section shall not be construed to limit any other

remedies available.

(Source: P.A. 96-1195, eff. 7-1-11.)

Section 99. Effective date. This Act takes effect upon

becoming law.