NAELA POST-LEGISLATIVE SESSION REPORT #1

Friday, August 10, 2018 4:58 PM | Anonymous

By Tony Abboud, Strategic Government Solutions Inc.

NAELA had another successful legislative session, tracking hundreds of bills affecting our practices and clients, passing important solutions and preventing bad laws from being enacted.  Here are some highlights in this first of our two-part post-session update.


ABLE Accounts Enhanced & Protected!  Illinois NAELA played a significant role in drafting the Illinois ABLE Act.  This year, NAELA worked with Illinois State Treasurer Michael Frerichs to both enhance and protect assets in ABLE accounts. Thanks to Sen. Scott Bennett (D-Champaign) and Rep. Kelly Burke (D-Oak Lawn) for sponsoring the bills which have now become law as Public Act 100-0713 that clarifies Illinois law to expressly permit the irrevocable assignment of additional resources into ABLE accounts and discretionary trusts including, without limitation, interests in real or personal property, judgment, settlement, annuity, maintenance, minor child support, and support for non-minor children. In addition, the law protects private assets that have been deposited into ABLE accounts by prohibiting state agencies from making a claim on these assets upon the death of a designated beneficiary. 

New Tool for Securing Financial Records for Medicaid Applications. 

Once again this year, the nursing home association sought to push a bill that would have allowed nursing homes to secure 5 years of financial records for long term care applications.  Once again, NAELA objected to the nursing homes unfettered access to an applicant’s financial information.  NAELA and the various financial institution interest groups worked cooperatively to create a solution that establishes a mechanism by which the applicant’s financial institution can provide financial records directly to the Department for purposes of expediting long term care applications.   The new law includes a Consent Form that an applicant may present to his/her financial institution authorizing them to deliver to the Illinois Department of Human Services and Illinois Department of Health and Family Services financial records needed for evaluating Medicaid and long term care Medicaid applications.  The new law does not in any way impair the rights or ability of an applicant to have their attorney seek the same records on their behalf.  Thanks to Sen. John Mulroe (D-Chicago) and Rep. Lou Lang (D-Skokie) for sponsoring and passing SB2385, which was signed into law by Governor Rauner as Public Act 100-0664


Bona Fide Purchasers of Real Estate Exempt from Presumptively Void Transfers.   

For the past two years, NAELA has defended the important Presumptively Void Transfers law that we passed in 2016 to protect seniors from unscrupulous third-party caregivers.   This year, NAELA was able to work with stakeholders -- Illinois Land Title Insurers Association, the Illinois Bankers Association, Illinois State Bar Association, and the Illinois Credit Union League – who were interested in protecting bona fide purchasers of real estate to insure they are insulated from disputes under the Presumptively Void Transfers Article of the Probate Act (755 ILCS 5/4a-5, et seq.).   This year’s effort brought to conclusion a heavily negotiated amendment to our law which remains strong.  Thanks to Rep. Emanuel Chris Welch (D-Westchester) and Sen. Don Harmon (D-Oak Park) for sponsoring HB 5047 and carrying this bill which passed out of both the House and Senate unanimously.   The bill is currently on the Governor’s desk awaiting signature.


New Act: the Kasem/Baksys Visitation Law.  

This bill would create the “Frail Individual Family Visitation Protection Act”, aka the Kasem/Baksys Visitation Law.  It defines a "frail individual" and permits family members of a frail individual to petition the court for visitation if a caregiver is unreasonably preventing visitation.  NAELA originally opposed the bill as it lacked many important limiting provisions.  Through the legislative process, the bill was amended to exclude guardianships and POAs and to include other procedural protections to ensure that the “frail individual’s” rights and interests were protected.  Moreover, we sought to ensure that a proper legal process was articulated to address any such actions.  HB4039 passed unanimously out of the House and Senate and is now on Governor Rauner’s desk awaiting signature. Thank you to Rep. Sara Wojiecki-Jimenez (D-Springfield) and Sen. Melinda Bush (D-Grayslake) for their hard work on this bill.


An Advanced Directives Registry for Illinois?   

It’s not soup yet.  SB2296 was introduced by Sen. Julie Morrison (D-Deerfield) to create in Illinois an electronic advanced directives registry within the Illinois Department of Public Health into which residents could submit specified advance directive forms.  The registry would have been made available only to hospitals licensed under the Hospital Licensing Act or organized under the University of Illinois Hospital Act. The bill was drafted by the Health Law Section Council of the ISBA.  While NAELA agreed with the concept of a registry, NAELA identified and raised a significant number of concerns and problems about the bill’s lack of definition, guidelines and penalties, among others, and raised significant questions on how an individual’s true advanced directives would be honored and protected.  NAELA participated in stakeholder meetings with the drafters of the bill and other stakeholders including the Illinois Hospital Association, Illinois State Medical Society, Illinois Department of Public Health and the Illinois Palliative Care Society.  Based on the concerns raised by NAELA, which were agreed to by the other stakeholders who also raised additional concerns, Sen Morrison agreed to continued dialogue on what an advanced directives registry should look like in Illinois.


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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