End of Session - Bills of Interest

Thursday, August 12, 2021 10:17 AM | Nina Vidmer (Administrator)

As promised by our legislative subcommittee, please find below a list, prepared by our lobbyists, of bills that have been signed into law during the spring legislative session that ended May 31, 2021 .

Also at the bottom of the list we mentioned several bills of interest that have not been signed into law.

As we may have mentioned before, the General Assembly has 30 days from the close of the spring legislative session to submit the bills to the Governor, or June 30, 2021.

The Governor then has 60 days upon receipt to sign the bills, or until August 30, 2021.

Here is what has been signed to date:

IL - SB701 ADULT PROTECTIVE SERVICES- Effective January 1, 2022  Amends the Adult Protective Services Act. Expands the scope of the Act to include reports of abandonment.

IL - SB80 PROBATE ACT-ADULT GUARDIANSHIP  Effective January 1 of 2022.  This legislation makes changes regarding temporary guardianship to align the entire state on best practices.

IL - SB100 MEDICAID SPEND DOWN Effective immediately.  This legislation amends the Medical Assistance Article of the Illinois Public Aid Code and extends the amount of time applicants have to spend down to get on Medicaid to 6 consecutive months.

IL - HB1950 MEDICAID TECHNICAL ASSISTANCE Effective immediately. This legislation creates the Medicaid Technical Assistance Center Act. Requires the Department of Healthcare and Family Services to establish a Medicaid Technical Assistance Center (Center). Provides that the Center shall operate as a cross-system educational resource to strengthen the business infrastructure of health care provider organizations in Illinois to ultimately increase the capacity, access, health equity, and quality of Illinois' Medicaid managed care programs: HealthChoice Illinois and YouthCare. Requires the Center to be established within the Department's Office of Medicaid Innovation.

IL - SB2664 NOTARY-ELECTRONIC DOCUMENTS Effective July 1, 2021. This legislation amends the Illinois Notary Public Act providing requirements authorizing electronic and remote notarization and electronic notaries public. Effective on the later of: (1) January 1, 2022; or (2) the date on which the Secretary of State files with its Index Department a notice of its adoption of rules necessary to implement this Act. Some parts of the Act take effect on July 1, 2022.

IL - HB714 EVIDENCE-HEALTH CARE RECORDS Effective January 1, 2022.  This legislation provides that a health care facility or health care practitioner shall provide one complete copy of a patient's record. Provides that the records may be provided for the purposes of supporting a claim for Aid to the Aged, Blind, or Disabled benefits.

IL - SB730 ELECTRONIC WILL/REMOTE WITNESS Effective July 26, 2021. This legislation provides for (1) the valid execution, attestation, self-proving, and probate of electronic wills, paper copies of electronic wills, and wills attested to by witnesses through audio-video communication; and (2) the valid execution, attestation, and witnessing of documents, other than wills, through audio-visual communication.

IL - HB55 PROBATE-REPORT Effective January 1 of 2022.  Amends the Guardians For Adults With Disabilities Article of the Probate Act of 1975. Changes the definition of "developmental disability" to mean a disability that is attributable to an intellectual disability or a related condition. Defines "intellectual disability".

IL - HB158 HEALTH CARE & HUMAN SERVICES Effective April 27, 2021.

IL - HB263 PROBATE-TEMPORARY GUARDIAN Effective July 23, 2021. This legislation provides that a petition for the appointment of a temporary guardian for an alleged person with a disability shall be filed at the time of or subsequent to the filing of a petition for adjudication of disability and appointment of a guardian.

IL - HB282 STATE'S ATTORNEY-LEGAL OPINION- Effective July, 9. 2021.  This legislation amends the State's Attorney Division of the Counties Code. Provides that, in a county with less than 2,000,000 inhabitants, the State's Attorney may give an opinion, without fee or reward, upon any question of law relating to a County Veterans Assistance Commission.

IL - HB357 MEDICAID-LONG-TERM CARE Effective January 1, 2022.  This legislation amends the Medical Assistance Article of the Illinois Public Aid Code and provides that within 120 calendar days (rather than 45 calendar days) of receipt by a long-term care facility of required prescreening information, new admissions with associated admission documents shall be submitted through the Medical Electronic Data Interchange or the Recipient Eligibility Verification System or shall be submitted directly to the Department of Human Services using required admission forms.

IL - HB679 POWER OF ATTORNEY-REVOCATION Effective July 30 , 2021 Amends the Illinois Power of Attorney Act. Provides that a principal may elect a 30-day delayed revocation of the principal's health care agency

IL - HB842 PROBATE-GUARDIAN AD LITEM FEES- Effective January 1, 2022.

IL - SB109 HEALTH SURROGATE-POLST CHANGES  Effective January 1, 2022. This legislation removes the requirement for a witness signature on the form.

IL - SB147 INS-MEDICARE OPEN ENROLLMENT- Effective January 1, 2022.  This legislation provides that if an individual is at least 65 years of age but no more than 75 years of age and has an existing Medicare supplement policy, the individual is entitled to an annual open enrollment period lasting 45 days, commencing with the individual's birthday, and the individual may purchase any Medicare supplement policy with the same issuer that offers benefits equal to or lesser than those provided by the previous coverage.

IL -HB1795 ILLINOIS TRUST CODE – Effective January 1, 2022.  This legislation clarifies certain definitions and the intent behind certain sections of the Illinois Trust Code and otherwise enhances coordination of the Illinois Trust Code and does not make substantive amendments to the Illinois Trust Code.

IL - SB47 PROPERTY TRANSFER ON DEATH  (TODI) Effective January 1, 2022.    Legislative Committee Member Leonard Berg was extensively involved in the drafting this legislation. Leonard had early on expressed reservations that he had about certain provisions of this legislation. The bill, as signed does not meet  every provision that Leonard and others would've wished.

Legislative Committee Member Leonard Berg was extensively involved in drafting this legislation. Leonard had early on expressed reservations that he had about certain provisions of this legislation. The bill, as signed does not meet every provision that Leonard and others would've wished.

One point that Leonard wanted expressed to our membership, especially for some of our new practitioners who are just starting to draft Medicaid purposed estate planning documents, is to not be misled by certain language in the TODI bill. Specifically, Leonard's concern is found in new Section 66 of the TODI bill dealing with renunciation rights.

 Please note the following language in the last sentence of Section 66 of the new statute:

“Notwithstanding the above foregoing, a surviving spouse does not have the right to renounce a transfer on death instrument that transfers the owner’s interest in real property to a trustee of a trust created under the owners will or otherwise that is for the sole benefit of the surviving spouse during his or her lifetime.”

Thus, from a Medicaid planning perspective, transfers of property upon the death of an owner to a non-testamentary trust will continue to be subject to potential Medicaid transfer penalties, however, Leonard wishes to point out that practitioners should not be misled by the  “or otherwise”  language that remains in Section 66 which may be a malpractice trap for some elder law/Medicaid practitioners who do not understand the distinction between:

                           A.            assets left by a predeceasing spouse to a surviving spouse in a revocable living trust which can create ineligibility problems,  versus

                           B.            assets left by a predeceasing spouse to a surviving spouse in a testamentary trust found in this predeceasing spouse's will.

 To summarize, do not be misled by the seemingly equivocal  “or otherwise” language found in section 66, because for Medicaid planning purposes there are substantial distinctions between trusts created under the owner's will and trust that are not created under the owner's will.

 Further, Leonard feels it is important for our members and practitioners to know the following about the TODI bill: with the TODI bill the beneficiary potentially takes the real estate subject to recorded liens (which is the present law), but now also subject to unsecured creditors if the probate and trust estate assets are not sufficient to pay those claims. Leonard's position was that the beneficiary who received the house was not liable for unsecured creditors of the decedent, but this new law changes that paradigm; where the house is the only asset and no lien was filed during the lifetime of the decedent the beneficiary might wait for the 2 year claim period to expire before taking title; but one huge caveat if this wait and see attitude is adopted, namely it may not be possible to get homeowners insurance during the period following death and the beneficiary assuming title.

Other Notes:

SUPPORTED DECISION-MAKING ACT

HB 3849               Not signed as of 8-10-21

ST TREASURER-ABLE ACCOUNT PROG

HB 1836 – identical to SB 539      Neither have been signed as of 8-10-21

USING EXISTING LIFE INSURANCE POLICIES FOR PREPAID BURIALS

HB 295  This passed the House without objection, but last minute objectors derailed the bill

We hope all is well and everybody is enjoying the summer,

Sincerely,

The Legislative Committee


Illinois Chapter
National Academy of Elder Law Attorneys, Inc.
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The National Academy of Elder Law Attorneys, Inc. (NAELA) was founded in 1987 as a professional association of attorneys who are dedicated to improving the quality of legal services provided to people as they age and people with special needs.
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