By Ben A. Neiburger, Attorney, Generation Law

Melissa Johnson and I are active members of the legislative committee of the Illinois Chapter of the National Academy of Elder Law Attorneys (NAELA) (I am the co-chair). From January, through the end of April this committee meets weekly to review, comment, advocate for or try to stop legislative bills. This year, we worked on 102 bills.

One of the bills we were most excited to work on was a change to the financial power of attorney statute (see I. Power of Attorney, SB 3421 below). This is something I have worked on for two years, negotiating with 10 different lobbyists and the amazing sponsors in the Senate, former Senator Ann Gillespie and Senate President, Don Harmon. This law passed both the Illinois House and Senate on May 22, 2024. The Governor signed this bill on August 9, 2024.

In addition to the POA/SB 3421, below we are also including other highlights from our 2024 legislative session, where the main focus was on providing healthcare for the most vulnerable and making healthcare more accessible through substantial insurance reforms.

I.  Power of Attorney (SB 3421)

Amends the Illinois Power of Attorney Act.
  • Makes it unlawful for a third party to unreasonably refuse to honor a statutory short form power of attorney properly executed in accordance with the laws in effect at the time of its execution.
  • Provides that it is unreasonable for a third party to refuse to honor a statutory short form power of attorney properly executed in accordance with the laws in effect at the time of its execution, if the only reason for the refusal is any of the following:
    1. The power of attorney is not on a form the third party receiving such power prescribes regardless of any form the terms of any account agreement between the account holder and third party requires;
    2. There has been a lapse of time since the execution of the power of attorney;
    3. On the face of the statutory short form power of attorney, there is a lapse of time between the date of acknowledgment of the signature of the principal and the date of the acceptance by the agent;
    4. The document provided does not bear an original signature, original witness, or original notarization but is accompanied by an attorney-certified copy; or
    5. The document appoints an entity as the agent.
Amends the Illinois Power of Attorney Act.
  • Provides that it is unreasonable for a third party to refuse to honor an Illinois statutory short form power of attorney properly executed in accordance with the laws.

NAELA initially drafted this bill, then over course 18 months negotiated with banks (credit unions, large and community banks) to find common ground and pass an agreed bill.  It is intended to assist bank employees and protect POAs by giving clear grounds for rejecting or accepting a POA.

II.  Marriage of Ward (SB 2758)

Amends the Probate Act of 1975.
  • Allows a ward in guardianship to marry if the ward understands the nature, effect, duties, and obligations of marriage.
  • Provides that prior consent of the guardian of the person or estate or approval of the court is not required for the ward to enter into a marriage.
  • Provides that a guardian may contest the validity of a marriage under the Illinois Marriage and Dissolution of Marriage Act.

While NAELA fully supports the right to marriage, the legislation as written could take protective oversight away from guardianship judges and subject mentally disabled individual to potential predators.  NAELA members applied full-court press to work against bill as written, and stopped bill from passing Senate.  NAELA engaged with stakeholders on many calls, emails and presented alternative language to the drafters of the bill.  However, the parties could not come to an agreement in the issues.

III. Marriage of Ward (HB 4444)

Amends the Illinois Marriage and Dissolution of Marriage Act.
  • Requires the form for an application for a marriage license to include whether either party is under a court-ordered guardianship in any State in the United States.
  • Provides that a county clerk shall issue a license to marry and a marriage certificate form, among other requirements, upon being furnished satisfactory proof that neither party to the marriage is under a court-ordered guardianship, or that if at least one party is under a court-ordered guardianship, there has been a judicial determination that the marriage is in the best interests of the person or persons under court-ordered guardianship.
Amends the Guardians For Adults With Disabilities Article of the Probate Act of 1975.
  • Requires the court, when determining whether a marriage is in the best interests of a ward, to follow (rather than consider) specified standards.
  • Provides that if a best interests hearing is not held before a judicial officer prior to a ward entering into marriage, then the marriage is without legal effect and void ab initio.

Initiative in response to an older adult with dementia who was taken advantage of through a marriage he could not consent to.  Tragically, he passed away before family could intervene.  Lobbyists and NAELA legislative committee members engaged with Rep. Ness and support this approach.  The NAELA will continue working with sponsor over summer/fall to assist in these efforts.

IV. Supportive Decision Making (SB 2663 / HB 4275)

Amends the Probate Act of 1975.
  • Provides that upon the filing of a petition by a reputable person or by the alleged person with a disability himself or on its own motion, the court may adjudge a person to be a person with a disability, but only if it has been demonstrated by clear and convincing evidence that the person is a person with a disability and the person cannot be supported through a supported decision-making agreement.
  • Provides that at the time of the appointment of a guardian the court shall inform the ward of his right to petition for termination of an adjudication of disability using a supported decision-making agreement.
  • Makes other changes.
Amends the Supported Decision-Making Agreement Act.
  • Changes the definition of “principal” to mean an adult (rather than an adult with intellectual or developmental disabilities) who seeks to enter, or has entered, into a supported decision-making agreement with a supporter.
  • Allows a principal to elect to nominate the supporter as the principal’s health care surrogate and may act as the principal’s health care surrogate when the standards set forth in the Health Care Surrogate Act have been met.
  • Makes conforming changes.
Amends the Health Care Surrogate Act.
  • Provides that a supporter designated under a supported decision-making agreement has second priority to make decisions on behalf of a patient.

NAELA worked against this overly broad bill. Again, the concern is that this legislation takes power away from Guardianship judge who is best positioned to determine the care of the person under the guardianship. In addition, this legislation adds a category of advocate that muddies the waters on whose directions a third party can follow. .  Lobbyists worked with senate and house legal staff as well as with sponsors to detail the problems of the bill.  Through those efforts the bills were NOT called for a vote.  NAELA lobbyists and legislative committee members engaged in numerous discussions with the sponsors and provided alternative language.  We expect this issue to resurface in 2025 and be part of discussions prior to the start of next session.

V. Guardianship Guardrails / Guardian – Adult with Disabilities (HB 4884)

Amends the Probate Act of 1975.
  • Provides that if guardianship is necessary and the petition for guardianship is filed by a person, corporation, nonprofit organization, or other entity with no legally recognized relationship to the alleged person with a disability, the court shall appoint the county public guardian as temporary and permanent guardian.

Lobbyists and NAELA legislative committee members engaged on improving the introduced bill and attending all meetings and hearings on the bill.  More work is ongoing and we expect this bill to be filed in 2025 with changes.

VI. Nursing Facility – Residency (SB 3723 / HB 5012 and HB 5151)

Amends the Assisted Living and Shared Housing Act.
  • Provides that the assessment conducted upon the identification of a significant change in the resident’s condition shall include, but shall not be limited to, a diagnosis of Alzheimer’s disease or a related dementia.
  • Provides that a written service plan shall be based upon the assessment, the resident’s interests and preferences, dislikes, and any known triggers for behavior that endangers the resident or others (rather than only the assessment).
  • Requires the resident and the resident’s representative to be given a copy of the most recent assessment, a supplemental assessment, and a service plan.
  • Requires an establishment to notify the resident and the resident’s representative when there is a significant change in the resident’s condition that affects the establishment’s ability to meet the resident’s needs.
  • Prohibits an establishment from terminating or reducing any service without the consent of the resident or the resident’s representative for the purpose of making it more difficult or impossible for the resident to remain in the establishment.
  • Provides that an establishment may not initiate a termination of residency due to an emergency situation if the establishment is able to safely care for the resident and
    1. The resident has been hospitalized and the resident’s physician, the establishment’s manager, and the establishment’s director of nursing state that returning to the establishment would not create an imminent danger of death or serious physical harm to the resident; or
    2. The emergency can be negated by changes in activities, health care, personal care, or available rooming accommodations, consistent with the license and services of the establishment.
  • Provides that a resident has the right to not be unlawfully transferred or discharged.
  • Makes other changes.
Amends the Nursing Home Care Act.
  • Prohibits a resident from being transferred or discharged in violation of the Act.
  • Provides that a resident has the right not to be unlawfully transferred or discharged.
  • Provides that a facility that fails to comply with an order to readmit a resident who wishes to return to the facility and is appropriate for that level of care and services provided, shall be assessed a $2,500 fine.
  • Requires a facility that complies with an order to readmit a resident that has been deemed to have been unlawfully discharged to notify the Department of Public Health within 10 business days that the resident has been readmitted to the facility.
  • Provides that a facility may involuntarily transfer or discharge a resident because the facility is unable to meet the medical needs of the resident, as documented in the resident’s clinical record by the resident’s physician for medical reasons.
  • Provides that the Department maintains jurisdiction over the transfer or discharge irrespective of the timing of the notice and discharge.
  • Provides that if the Department determines that a transfer or discharge is not authorized, then the Department shall issue a written decision stating that the transfer or discharge is denied.

NAELA strongly supports this bill as it would be very beneficial to nursing home residents.  It would add a considerable number of protections for nursing home residents in a variety of situations including involuntary discharges and refusals for readmission.

VII.  End of Life Options (SB 3499)

NAELA members are engaged in larger coalition seeking to finalize language that is passable.  The bill may be called in late 2024 or in 2025 session.

VIII.   Notary Public – Training Exempt (SB 3513)

  • Provides that an applicant to renew an appointment as a notary public or as an electronic notary public is not required to complete a course of study or pass an examination if the applicant is a licensed attorney or judge or employed by a licensed attorney or the court.

NAELA supported by witness slips and lobbying.