Elder Law

(Silverstein, D-Chicago; Feigenholtz, D-Chicago) prohibits the staying of enforcement or suspendion an order adjudicating a person disabled and appointing a guardian pending the filing and resolution of any post-judgment motion. It still allows the judge to do this. Passed both chambers.

(Silverstein, D-Chicago; Feigenholtz, D-Chicago) creates a $100 fee to open a decedent’s estate to fund the State Guardianship and Advocacy Commission. It exempts indigents, the State Guardian, any State agency, any local public guardian, and any state’s attorney. (2) It also allows the court to appoint a limited guardian for a disabled adult who lacks some but not all of the required capacity. If the court finds that the ward is totally without the required capacity, it may appoint a plenary guardian. (3) Adds criteria for the termination of the guardianship or modification of the guardian’s duties. Passed both chambers, and it has a January 1, 2013 effective date.

Senate Bill 3171 (Sullivan, D-Rushville; Brady, R-Normal) does three things if no estate is opened. (1) Clarifies that a “handling” fee may not be charged to a patient or patient’s representative under Section 8-2001.5. (2) Requires that health-care providers release this information to a patient representative as authorized under this Section. (3) Requires that a person purporting to be a patient representative certify that to be true under penalty of law. Passed both chambers. It has an immediate effective date, so it will take effect on the day the Governor signs it.

(Feigenholtz, D-Chicago; Steans, D-Chicago) is supposed to eliminate Illinois’ $2.7 billion Medicaid funding gap. Included in Senate Bill 2840 is a repeal of the compromise of the Medicaid eligibility rules negotiated last fall between the Department of Healthcare and Family Services and the Joint Committee on Administrative Rules. Some of these changes include the following: (1) A home transferred into a trust after the bill becomes law may not be considered homestead property. If the home was transferred into a trust before the bill becomes law, it prevents a person from being eligible for long-term care if the person’s equity interest in this homestead exceeds the minimum home equity as allowed under federal law. (2) People over the age of 65 can no longer participate in a federally created OBRA Pooled Trust unless the beneficiary is a ward of the county public guardian or the State guardian. The bill has an immediate effective date and will therefore take effect when the Governor signs it. House Amendment No. 4 is at the link below, and these provisions may be found starting on page 60. Passed both chambers yesterday.

(Feigenholtz, D-Chicago; Steans, D-Chicago) is supposed to eliminate Illinois’ $2.7 billion Medicaid funding gap. Included in Senate Bill 2840 is a repeal of the compromise of the Medicaid eligibility rules negotiated last fall between the Department of Healthcare and Family Services and the Joint Committee on Administrative Rules. Some of these changes include the following: (1) A home transferred into a trust after the bill becomes law may not be considered homestead property. If the home was transferred into a trust before the bill becomes law, it prevents a person from being eligible for long-term care if the person’s equity interest in this homestead exceeds the minimum home equity as allowed under federal law. (2) People over the age of 65 can no longer participate in a federally created OBRA Pooled Trust unless the beneficiary is a ward of the county public guardian or the State guardian. (3) A healthy spouse still living at home will receive only the minimum resource allowance instead of the maximum allowance as previously approved by JCAR. ($110,000 decreased to $22,000) (4) Abolishes spousal refusal entirely so that HFS is not limited to how much it can seek when pursing a support order against a community spouse. Senate Bill 2840 will be heard in House Executive Committee this afternoon. The bill has an immediate effective date and will therefore take effect when the Governor signs it. House Amendment No. 3 is at the link below, and these provisions may be found starting on page 75.

Senate Bill 3171 (Brady, R-Bloomington-Normal; Sullivan, D-Rushville) integrates Illinois’ medical records’ statute with the 2003 federal Privacy Rule. (1) The federal Department of HHS has interpreted the federal Privacy Rule that a patient or their representative may not be charged a “handling” or “retrieval” fee; the only fees that may be charged are reasonable per-page fees. This change makes clear that this protection applies as well to a patient’s personal representative under the recently enacted medical records’ statute at § 8-2001.5. (2) Under the federal Privacy Rule release of medical records is required to be given to a decedent’s executor or administrator or “or other person who has authority to act on behalf of a deceased individual or of the individual’s estate. Senate Bill 3171 makes this change to reflect federal law as well. (3) This requires that a person purporting to be a personal representative seeking records under this statute must certify that to be true under penalty of perjury so that there is some evidence that is true. This is scheduled for a hearing in House Judiciary I Committee this afternoon.

(Silverstein, D-Chicago) creates a new fee on probating estates to fund the Guardianship and Advocacy Commission, a state agency. For example, opening an estate is a $150 fee, filing an account (except the final one) or a proof of claim is a $25 fee or higher if the claim is more than $500. This bill is in Senate Judiciary Committee. An identical bill is House Bill 4985 (Feigenholtz, D-Chicago), which is on second reading in the House. Senate Bill 2894 is in Senate Judiciary Committee.

(Dillard, R-Westmont) amends the Probate Act of 1975 to provide that an adopted child is not a child of a natural parent whose parental rights were terminated by the adoption (rather than that an adopted child is not a child of a natural parent), nor is the child a descendant of a natural parent or of any lineal or collateral kindred of a natural parent, unless specified conditions apply. Just introduced and referred to the Senate Committee on Assignments for referral to a substantive committee.

(Rezin, R-Peru) creates an exception to the statute of repose for attorney malpractice that currently limits actions to no later than six years after the date on which the attorney's act or omission occurred. The exception is if the client is still represented by the attorney or the attorney knowingly conceals the act or omission. If that occurs, the limitation does begin to run until the person is no longer represented by the attorney or until the client should have known of the injury. Just introduced and referred to the Committee on Assignments for assignment to a substantive committee.