Bill Amendment: IL HB3529 | 2015-2016 | 99th General Assembly

NOTE: For additional amemendments please see the Bill Drafting List

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Bill Title: CRIMCD-ELDER & PERSON W/ DISAB

Status: 2015-10-10 - Pursuant to Senate Rule 3-9(b) / Referred to Assignments [HB3529 Detail]

Download: Illinois-2015-HB3529-Senate_Amendment_001.html

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Sen. Thomas Cullerton

Filed: 5/8/2015

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AMENDMENT TO HOUSE BILL 3529
AMENDMENT NO. ______. Amend House Bill 3529 by replacing
everything after the enacting clause with the following:
"Section 5. The Criminal Code of 2012 is amended by
changing Section 17-56 as follows:
(720 ILCS 5/17-56) (was 720 ILCS 5/16-1.3)
Sec. 17-56. Financial exploitation of an elderly person or
a person with a disability.
(a) A person commits financial exploitation of an elderly
person or a person with a disability when he or she stands in a
position of trust or confidence with the elderly person or a
person with a disability and he or she knowingly and by
deception or intimidation obtains control over the property of
an elderly person or a person with a disability or illegally
uses the assets or resources of an elderly person or a person
with a disability, including income required to be applied to

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the cost of care of an elderly person or person with a
disability residing in a facility licensed under the Nursing
Home Care Act in order to establish and maintain Medicaid
eligibility for long term care supports and services as
provided in the Illinois Public Aid Code.
(b) Sentence. Financial exploitation of an elderly person
or a person with a disability is: (1) a Class 4 felony if the
value of the property is $300 or less, (2) a Class 3 felony if
the value of the property is more than $300 but less than
$5,000, (3) a Class 2 felony if the value of the property is
$5,000 or more but less than $50,000, and (4) a Class 1 felony
if the value of the property is $50,000 or more or if the
elderly person is over 70 years of age and the value of the
property is $15,000 or more or if the elderly person is 80
years of age or older and the value of the property is $5,000
or more.
(c) For purposes of this Section:
(1) "Elderly person" means a person 60 years of age or
older.
(2) "Person with a disability" means a person who
suffers from a physical or mental impairment resulting from
disease, injury, functional disorder or congenital
condition that impairs the individual's mental or physical
ability to independently manage his or her property or
financial resources, or both.
(3) "Intimidation" means the communication to an

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elderly person or a person with a disability that he or she
shall be deprived of food and nutrition, shelter,
prescribed medication or medical care and treatment or
conduct as provided in Section 12-6 of this Code.
(4) "Deception" means, in addition to its meaning as
defined in Section 15-4 of this Code, a misrepresentation
or concealment of material fact relating to the terms of a
contract or agreement entered into with the elderly person
or person with a disability or to the existing or
pre-existing condition of any of the property involved in
such contract or agreement; or the use or employment of any
misrepresentation, false pretense or false promise in
order to induce, encourage or solicit the elderly person or
person with a disability to enter into a contract or
agreement.
The illegal use of the assets or resources of an elderly
person or a person with a disability includes, but is not
limited to, the misappropriation of those assets or resources
by undue influence, breach of a fiduciary relationship, fraud,
deception, extortion, or use of the assets or resources
contrary to law.
A person stands in a position of trust and confidence with
an elderly person or person with a disability when he (i) is a
parent, spouse, adult child or other relative by blood or
marriage of the elderly person or person with a disability,
(ii) is a joint tenant or tenant in common with the elderly

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person or person with a disability, (iii) has a legal or
fiduciary relationship with the elderly person or person with a
disability, (iv) is a financial planning or investment
professional, or (v) is a paid or unpaid caregiver for the
elderly person or person with a disability.
(d) Limitations. Nothing in this Section shall be construed
to limit the remedies available to the victim under the
Illinois Domestic Violence Act of 1986.
(e) Good faith efforts. Nothing in this Section shall be
construed to impose criminal liability on a person who has made
a good faith effort to assist the elderly person or person with
a disability in the management of his or her property, but
through no fault of his or her own has been unable to provide
such assistance.
(f) Not a defense. It shall not be a defense to financial
exploitation of an elderly person or person with a disability
that the accused reasonably believed that the victim was not an
elderly person or person with a disability.
(g) Civil Liability. A person who is charged by information
or indictment with the offense of financial exploitation of an
elderly person or person with a disability and who fails or
refuses to return the victim's property within 60 days
following a written demand from the victim or the victim's
legal representative shall be liable to the victim or to the
estate of the victim in damages of treble the amount of the
value of the property obtained, plus reasonable attorney fees

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and court costs. The burden of proof that the defendant
unlawfully obtained the victim's property shall be by a
preponderance of the evidence. This subsection shall be
operative whether or not the defendant has been convicted of
the offense.
(h) If a person is charged with financial exploitation of
an elderly person or a person with a disability that involves
the taking or loss of property valued at more than $5,000, a
prosecuting attorney may file a petition with the circuit court
of the county in which the defendant has been charged to freeze
the assets of the defendant in an amount equal to but not
greater than the alleged value of lost or stolen property in
the defendant's pending criminal proceeding for purposes of
restitution to the victim. The burden of proof required to
freeze the defendant's assets shall be by a preponderance of
the evidence.
(i) Evidence of failure to pay for the facility care of an
elderly person or person with a disability from the assets and
income of the elderly person or person with a disability which
are identified as above the allowable limits required under 89
Ill. Adm. Code 120.61 for the purposes of meeting long term
care Medicaid eligibility requirements for medical assistance,
may include, but is not limited to failure to comply with
notification from the Department of Healthcare and Family
Services of the requirement to pay from the assets and income
of the elderly person or person with a disability which are

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identified as above the allowable limits required under 89 Ill.
Adm. Code 120.61 for the purposes of meeting long term care
Medicaid eligibility requirements for medical assistance.
(Source: P.A. 96-1551, eff. 7-1-11; 97-482, eff. 1-1-12;
97-865, eff. 1-1-13.)
Section 10. The Unified Code of Corrections is amended by
changing Section 5-5-6 as follows:
(730 ILCS 5/5-5-6) (from Ch. 38, par. 1005-5-6)
Sec. 5-5-6. In all convictions for offenses in violation of
the Criminal Code of 1961 or the Criminal Code of 2012 or of
Section 11-501 of the Illinois Vehicle Code in which the person
received any injury to his or her person or damage to his or
her real or personal property as a result of the criminal act
of the defendant, the court shall order restitution as provided
in this Section. In all other cases, except cases in which
restitution is required under this Section, the court must at
the sentence hearing determine whether restitution is an
appropriate sentence to be imposed on each defendant convicted
of an offense. If the court determines that an order directing
the offender to make restitution is appropriate, the offender
may be sentenced to make restitution. The court may consider
restitution an appropriate sentence to be imposed on each
defendant convicted of an offense in addition to a sentence of
imprisonment. The sentence of the defendant to a term of

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imprisonment is not a mitigating factor that prevents the court
from ordering the defendant to pay restitution. If the offender
is sentenced to make restitution the Court shall determine the
restitution as hereinafter set forth:
(a) At the sentence hearing, the court shall determine
whether the property may be restored in kind to the
possession of the owner or the person entitled to
possession thereof; or whether the defendant is possessed
of sufficient skill to repair and restore property damaged;
or whether the defendant should be required to make
restitution in cash, for out-of-pocket expenses, damages,
losses, or injuries found to have been proximately caused
by the conduct of the defendant or another for whom the
defendant is legally accountable under the provisions of
Article 5 of the Criminal Code of 1961 or the Criminal Code
of 2012.
(b) In fixing the amount of restitution to be paid in
cash, the court shall allow credit for property returned in
kind, for property damages ordered to be repaired by the
defendant, and for property ordered to be restored by the
defendant; and after granting the credit, the court shall
assess the actual out-of-pocket expenses, losses, damages,
and injuries suffered by the victim named in the charge and
any other victims who may also have suffered out-of-pocket
expenses, losses, damages, and injuries proximately caused
by the same criminal conduct of the defendant, and

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insurance carriers who have indemnified the named victim or
other victims for the out-of-pocket expenses, losses,
damages, or injuries, provided that in no event shall
restitution be ordered to be paid on account of pain and
suffering. When a victim's out-of-pocket expenses have
been paid pursuant to the Crime Victims Compensation Act,
the court shall order restitution be paid to the
compensation program. If a defendant is placed on
supervision for, or convicted of, domestic battery, the
defendant shall be required to pay restitution to any
domestic violence shelter in which the victim and any other
family or household members lived because of the domestic
battery. The amount of the restitution shall equal the
actual expenses of the domestic violence shelter in
providing housing and any other services for the victim and
any other family or household members living at the
shelter. If a defendant fails to pay restitution in the
manner or within the time period specified by the court,
the court may enter an order directing the sheriff to seize
any real or personal property of a defendant to the extent
necessary to satisfy the order of restitution and dispose
of the property by public sale. All proceeds from such sale
in excess of the amount of restitution plus court costs and
the costs of the sheriff in conducting the sale shall be
paid to the defendant. The defendant convicted of domestic
battery, if a person under 18 years of age was present and

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witnessed the domestic battery of the victim, is liable to
pay restitution for the cost of any counseling required for
the child at the discretion of the court.
(c) In cases where more than one defendant is
accountable for the same criminal conduct that results in
out-of-pocket expenses, losses, damages, or injuries, each
defendant shall be ordered to pay restitution in the amount
of the total actual out-of-pocket expenses, losses,
damages, or injuries to the victim proximately caused by
the conduct of all of the defendants who are legally
accountable for the offense.
(1) In no event shall the victim be entitled to
recover restitution in excess of the actual
out-of-pocket expenses, losses, damages, or injuries,
proximately caused by the conduct of all of the
defendants.
(2) As between the defendants, the court may
apportion the restitution that is payable in
proportion to each co-defendant's culpability in the
commission of the offense.
(3) In the absence of a specific order apportioning
the restitution, each defendant shall bear his pro rata
share of the restitution.
(4) As between the defendants, each defendant
shall be entitled to a pro rata reduction in the total
restitution required to be paid to the victim for

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amounts of restitution actually paid by co-defendants,
and defendants who shall have paid more than their pro
rata share shall be entitled to refunds to be computed
by the court as additional amounts are paid by
co-defendants.
(d) In instances where a defendant has more than one
criminal charge pending against him in a single case, or
more than one case, and the defendant stands convicted of
one or more charges, a plea agreement negotiated by the
State's Attorney and the defendants may require the
defendant to make restitution to victims of charges that
have been dismissed or which it is contemplated will be
dismissed under the terms of the plea agreement, and under
the agreement, the court may impose a sentence of
restitution on the charge or charges of which the defendant
has been convicted that would require the defendant to make
restitution to victims of other offenses as provided in the
plea agreement.
(e) The court may require the defendant to apply the
balance of the cash bond, after payment of court costs, and
any fine that may be imposed to the payment of restitution.
(f) Taking into consideration the ability of the
defendant to pay, including any real or personal property
or any other assets of the defendant, the court shall
determine whether restitution shall be paid in a single
payment or in installments, and shall fix a period of time

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not in excess of 5 years, except for violations of Sections
16-1.3 and 17-56 of the Criminal Code of 1961 or the
Criminal Code of 2012, or the period of time specified in
subsection (f-1), not including periods of incarceration,
within which payment of restitution is to be paid in full.
Complete restitution shall be paid in as short a time
period as possible. However, if the court deems it
necessary and in the best interest of the victim, the court
may extend beyond 5 years the period of time within which
the payment of restitution is to be paid. If the defendant
is ordered to pay restitution and the court orders that
restitution is to be paid over a period greater than 6
months, the court shall order that the defendant make
monthly payments; the court may waive this requirement of
monthly payments only if there is a specific finding of
good cause for waiver.
(f-1)(1) In addition to any other penalty prescribed by
law and any restitution ordered under this Section that did
not include long-term physical health care costs, the court
may, upon conviction of any misdemeanor or felony, order a
defendant to pay restitution to a victim in accordance with
the provisions of this subsection (f-1) if the victim has
suffered physical injury as a result of the offense that is
reasonably probable to require or has required long-term
physical health care for more than 3 months. As used in
this subsection (f-1) "long-term physical health care"

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includes mental health care.
(2) The victim's estimate of long-term physical health
care costs may be made as part of a victim impact statement
under Section 6 of the Rights of Crime Victims and
Witnesses Act or made separately. The court shall enter the
long-term physical health care restitution order at the
time of sentencing. An order of restitution made under this
subsection (f-1) shall fix a monthly amount to be paid by
the defendant for as long as long-term physical health care
of the victim is required as a result of the offense. The
order may exceed the length of any sentence imposed upon
the defendant for the criminal activity. The court shall
include as a special finding in the judgment of conviction
its determination of the monthly cost of long-term physical
health care.
(3) After a sentencing order has been entered, the
court may from time to time, on the petition of either the
defendant or the victim, or upon its own motion, enter an
order for restitution for long-term physical care or modify
the existing order for restitution for long-term physical
care as to the amount of monthly payments. Any modification
of the order shall be based only upon a substantial change
of circumstances relating to the cost of long-term physical
health care or the financial condition of either the
defendant or the victim. The petition shall be filed as
part of the original criminal docket.

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(g) In addition to the sentences provided for in
Sections 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60,
11-19.2, 11-20.1, 11-20.1B, 11-20.3, 12-13, 12-14,
12-14.1, 12-15, and 12-16, and subdivision (a)(4) of
Section 11-14.4, of the Criminal Code of 1961 or the
Criminal Code of 2012, the court may order any person who
is convicted of violating any of those Sections or who was
charged with any of those offenses and which charge was
reduced to another charge as a result of a plea agreement
under subsection (d) of this Section to meet all or any
portion of the financial obligations of treatment,
including but not limited to medical, psychiatric, or
rehabilitative treatment or psychological counseling,
prescribed for the victim or victims of the offense.
(g-1) In addition to the sentence provided for in
Section 17-56 of the Criminal Code of 2012, the State's
Attorney of the county that prosecuted the defendant shall
request that the court order a person convicted of
financial exploitation of an elderly person or a person
with a disability under subsection (a) of Section 17-56 of
the Criminal Code of 2012, who failed to pay the long term
care facility licensed under the Nursing Home Care Act for
care provided to the elderly person or person with a
disability, to pay restitution to the facility where the
elderly person or a person with a disability resided at the
time of the financial exploitation of all amounts that are

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owed to the facility to pay for the care of the elderly
person or a person with a disability.
The payments shall be made by the defendant to the
clerk of the circuit court and transmitted by the clerk to
the appropriate person or agency as directed by the court.
Except as otherwise provided in subsection (f-1), the order
may require such payments to be made for a period not to
exceed 5 years after sentencing, not including periods of
incarceration.
(h) The judge may enter an order of withholding to
collect the amount of restitution owed in accordance with
Part 8 of Article XII of the Code of Civil Procedure.
(i) A sentence of restitution may be modified or
revoked by the court if the offender commits another
offense, or the offender fails to make restitution as
ordered by the court, but no sentence to make restitution
shall be revoked unless the court shall find that the
offender has had the financial ability to make restitution,
and he has wilfully refused to do so. When the offender's
ability to pay restitution was established at the time an
order of restitution was entered or modified, or when the
offender's ability to pay was based on the offender's
willingness to make restitution as part of a plea agreement
made at the time the order of restitution was entered or
modified, there is a rebuttable presumption that the facts
and circumstances considered by the court at the hearing at

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which the order of restitution was entered or modified
regarding the offender's ability or willingness to pay
restitution have not materially changed. If the court shall
find that the defendant has failed to make restitution and
that the failure is not wilful, the court may impose an
additional period of time within which to make restitution.
The length of the additional period shall not be more than
2 years. The court shall retain all of the incidents of the
original sentence, including the authority to modify or
enlarge the conditions, and to revoke or further modify the
sentence if the conditions of payment are violated during
the additional period.
(j) The procedure upon the filing of a Petition to
Revoke a sentence to make restitution shall be the same as
the procedures set forth in Section 5-6-4 of this Code
governing violation, modification, or revocation of
Probation, of Conditional Discharge, or of Supervision.
(k) Nothing contained in this Section shall preclude
the right of any party to proceed in a civil action to
recover for any damages incurred due to the criminal
misconduct of the defendant.
(l) Restitution ordered under this Section shall not be
subject to disbursement by the circuit clerk under Section
27.5 of the Clerks of Courts Act.
(m) A restitution order under this Section is a
judgment lien in favor of the victim that:

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(1) Attaches to the property of the person subject
to the order;
(2) May be perfected in the same manner as provided
in Part 3 of Article 9 of the Uniform Commercial Code;
(3) May be enforced to satisfy any payment that is
delinquent under the restitution order by the person in
whose favor the order is issued or the person's
assignee; and
(4) Expires in the same manner as a judgment lien
created in a civil proceeding.
When a restitution order is issued under this Section,
the issuing court shall send a certified copy of the order
to the clerk of the circuit court in the county where the
charge was filed. Upon receiving the order, the clerk shall
enter and index the order in the circuit court judgment
docket.
(n) An order of restitution under this Section does not
bar a civil action for:
(1) Damages that the court did not require the
person to pay to the victim under the restitution order
but arise from an injury or property damages that is
the basis of restitution ordered by the court; and
(2) Other damages suffered by the victim.
The restitution order is not discharged by the completion
of the sentence imposed for the offense.
A restitution order under this Section is not discharged by

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the liquidation of a person's estate by a receiver. A
restitution order under this Section may be enforced in the
same manner as judgment liens are enforced under Article XII of
the Code of Civil Procedure.
The provisions of Section 2-1303 of the Code of Civil
Procedure, providing for interest on judgments, apply to
judgments for restitution entered under this Section.
(Source: P.A. 96-290, eff. 8-11-09; 96-1551, eff. 7-1-11;
97-482, eff. 1-1-12; 97-817, eff. 1-1-13; 97-1150, eff.
1-25-13.)
Section 99. Effective date. This Act takes effect upon
becoming law.".