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ISBA Statehouse Review for the week of August 28, 2014

ISBA Director of Legislative Affairs Jim Covington reviews legislation in Springfield of interest to ISBA members. In this episode he covers Power of attorney for health care (Public Act 98-1113), Pregnancy and discrimination (Public Act 98-1050), Presumptively void transfers (Public Act 98-1093), Uniform Electronic Legal Material Act (Public Act 98-1097), The Home Repair and Construction Task Force (Public Act 98-103), Condominium Property Act (Public Act 98-1068) and Bail bonds and electronic surveillance (Public Act 98-1012). More information on the bill is available below the video.

Power of attorney for health care. Public Act 98-1113 (Haine, D-Alton; Williams, D-Chicago) was signed into law yesterday. It is a major rewrite of the power of attorney for health care law that does the following: (1) Replaces the current notice with a new notice styled more in the FAQ format and replaces the current form with a new form. No specific format is required for the statutory health care power of attorney other than the notice must precede the form. Retains current law that authorizes principals to use other forms instead of using the new statutory one as long as they comply with Illinois law. (2) Clarifies that a witness must be at least 18 years old and that some employees who are not owners of a health care facility may serve as a witness, specifically listing chaplains or social workers, and nurses. (3) The savings clause provides that Senate Bill 3228 doesn't invalidate existing powers of attorney for health care.

Effective January 1, 2015.

Pregnancy and discrimination. Public Act 98-1050 (Flowers, D-Chicago; Hutchinson, D-Chicago Heights) amends the Illinois Human Rights Act to prohibit unlawful discrimination by an employer based on pregnancy and require reasonable accommodation to a job applicant or employee for issues related to pregnancy or childbirth.

Effective January 1, 2015.

Administrative review and attorney’s fees. Public Act 98-1105 (Link, D-Waukegan; Zalewski, D-Chicago) allows a court to award attorney’s fees to the prevailing party in certain administrative-review actions. It applies only to the decision of a code-hearing officer that imposes a fine or penalty against the owner of a single-family or multi-family residential dwelling for a violation relating to the condition or use of residential property. It is limited to municipalities with a population of 500,000 or less.

The court may award the plaintiff all reasonable costs, including court costs and attorney’s fees, if the court finds that: (1) the hearing officer’s decision was arbitrary and capricious; or (2) the defendant failed to file a record under Section 3-108 of the Code of Civil Procedure that is sufficient to allow the court to determine whether the hearing officer's decision was arbitrary and capricious.

The court may award the municipality the same damages if the court finds that the plaintiff’s action seeking administrative review is not reasonably well grounded in fact, warranted by existing law, or accompanied by a reasonable argument for the extension, modification, or reversal of existing law.

Effective January 1, 2015.

Presumptively void transfers. Public Act 98-1093 (Harmon, D-Oak Park; E. Chris Welch, D-Westchester) creates a civil action in the Probate Act if a “presumptively void transfer” is challenged that applies to “caregivers.” If a “transfer instrument” transfers property, on or after the transferor's death, in excess of $20,000 to a caregiver and is challenged, it creates a rebuttable presumption that the transfer is void. A caregiver is defined as anyone who has assumed responsibility for all or a portion of the care of another person who needs assistance with daily living activities. A caregiver doesn’t include a “family member” of the person receiving assistance.

The presumption can be overcome if: (1) the transferee’s share under the transfer instrument is not greater than the share of the transferee was entitled to under the transferor’s testamentary plan in effect before the transferee became a caregiver; or (2) the transfer was not the product of fraud, duress, or undue influence as proved by clear and convincing evidence. If the caregiver attempts and fails to overcome the presumption, the caregiver must bear the cost of the proceedings, including reasonable attorney’s fees.

The statute of limitation for challenging a presumptively void transfer is two years unless the Probate Act requires a shorter period. This Act applies only to transfer instruments executed after January 1, 2015.

Uniform Electronic Legal Material Act. Public Act 98-1097 (Mulroe, D-Chicago; McAuliffe, R-Chicago) creates the Uniform Legal Material Act to regulate the authentication, publication, and availability of Illinois’ legal sources in electronic format.

Effective January 1, 2015.

The Home Repair and Construction Task Force. Public Act 98-1030 (Williams, D-Chicago; Koehler, D-Peoria) creates the Home Repair and Construction Task Force to study whether Illinois should enact legislation that requires home repair and construction contractors to be licensed by the State before being able to offer home repair and construction services and what are the qualifications that contractors must meet before being licensed.

The Task Force must report back to the Illinois General Assembly on or before Nov. 1, 2015.

Condominium Property Act. Public Act 98-1068 (E. Chris Welch, D-Westchester; Steans, D-Chicago) was signed into law yesterday. It makes the following declarations unenforceable if they affect the common elements or more than one unit and require any of the following before the board can take legal action on behalf of the association: (1) consent of a percentage of unit owners; (2) arbitration; (3) mediation before an action may be filed in court; or (4) a restriction or delay in the board’s ability to bring an action affecting the common elements or more than one unit. An otherwise unenforceable provision may be enforced after the election of the first-unit owner board of managers if it is approved by a unit-owner percentage vote of not less than 75 percent of the total in the aggregate of the undivided ownership of the common elements.

Effective January 1, 2015.

Bail bonds and electronic surveillance. Public Act 98-1012 (Wheeler, R-Crystal Lake; Althoff, R-Crystal Lake) amends the current statute on bail bonds and electronic surveillance. Under current law, if a defendant is charged with a violation of an order or protection, the court at the defendant’s bail bond hearing may order the respondent to undergo a risk-assessment evaluation and use electronic surveillance. The court may order that the person, as a condition of bail, to be placed under electronic surveillance. Public Act 98-1012 expands this statute to include a number of other offenses, including domestic battery, aggravated domestic battery, kidnapping, aggravated kidnaping, unlawful restraint, aggravated unlawful restraint, stalking, aggravated stalking, cyberstalking, harassment by telephone, harassment through electronic communications, or an attempt to commit first degree murder committed against an intimate partner regardless whether an order of protection has been issued against the person. Requires the court to document in the record its reasons for making a determination whether to order the respondent to undergo a risk-assessment evaluation or to be placed under electronic surveillance. Requires the defendant to pay for the cost of the risk-assessment and the electronic surveillance. Effective Jan. 1, 2015.

Posted on August 28, 2014 by Chris Bonjean
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