LawPulse

Spring 2021 state legislation of interest to ISBA members, organized by topic.

Business as usual resumed at the Illinois Capitol this spring when legislators sent numerous bills to Gov. Pritzker’s desk. Among new laws, some of which still awaited the governor’s signature when the Illinois Bar Journal went to press, includes statutes and amendments concerning the statute of repose for trusts and estates, electronic wills and remote witnesses, the Illinois Marriage and Dissolution of Marriage Act, prejudgment interest, and the criminal justice reform bill.

Please note that the governor must sign, veto, or amendatorily veto a bill within 60 days of receiving it; otherwise, it becomes law. The “drop date” is the 60-day deadline by which Gov. Pritzker must act. For more information about actions the governor has taken on specific bills or to view the entire text of bills, visit the General Assembly’s website.

Trusts, estate planning, & real estate

Attorney’s statute of repose for estate planners. Public Act 102-377 (Sims, D-Chicago; Ann Williams, D-Chicago). Includes a six-year statute of repose that would take effect immediately. But it also includes a “safe harbor” period to ensure judicial approval of the legislation. This means that for legal work done before the amendment’s effective date, regardless of how long ago, there would be a “reasonable” time period (not to exceed six years) after the statute’s effective date within which a claim could be brought to ensure claims are not abruptly terminated. This repeals the exception to the six-year statute of repose that covers all other legal work that is not triggered until the death of the client. Effective Jan. 1, 2022.

Transfer on Death Instrument Act (TODI) upgrade. Public Act 102-68 (Barickman, R-Bloomington; Halpin, D-Rock Island). Upgrades the TODI Act since its enactment in 2012 to resolve questions or issues that have surfaced in the nine years since the Act has been used. Effective Jan. 1, 2022.

The Electronic Wills and Remote Witnesses Act. Public Act 102-167 (Crowe, D-Maryville; Didech, D-Buffalo Grove). 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. Effective July 26, 2021.

Tune-up of the guardianship statute. Public Act 102-72 (Tracy, R-Quincy; Costa-Howard, D-Lombard). A cleanup of the adult guardianship statutes that the ISBA Elder Law Section Council has worked on for several years. Among its changes are: 1) clarifies that separate guardians may be appointed for the person and estate when both are needed, as well as codifying that there may be coguardians if the court finds it to be in the best interests of the ward; 2) clarifies the interplay of the power of attorney and the guardianship roles. It states that a petitioner who seeks to revoke a power of attorney for the person with an alleged disability must do so in conformity with the Illinois Power of Attorney Act; and 3) codifies that guardians are entitled to reasonable compensation, subject to court approval, after the court considers a fee petition. It will also consider these fees to be first-class claims under section 18-10 of the Probate Act if the ward dies. Drop date Aug. 16, 2021. Effective Jan. 1, 2022.

Practitioner Order for Life-Sustaining Treatment (POLST) forms. Public Act 102-140 (Feigenholtz, D-Chicago; Gabel, D-Evanston). Removes the requirement for a witness signature on the form. It authorizes recognition of the Illinois Department of Public Health’s Uniform POLST form, National POLST form, other formally sanctioned forms created in the fashion of the National POLST Paradigm, or out-of-hospital do-not-resuscitate orders faithfully executed in other states. Effective Jan. 1, 2022.

Electronic notaries. Public Act 102-160 (Holmes, D-Aurora; Kifowit, D-Aurora). Amends the Illinois Notary Public Act providing requirements authorizing electronic and remote notarization and electronic notaries public. Effective on the later of: 1) Jan. 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 except some parts of the bill take effect July 1, 2022.

Power of attorney. House Bill 679 (Davis, East Hazel Crest; Harris, D-Dolton). Amends the Illinois Power of Attorney Act. It provides that a principal may elect a 30-day delayed revocation of his or her health care agency. If a principal makes this election, the principal’s revocation is delayed for 30 days after the principal communicates his or her intent to revoke. Drop date Aug. 23, 2021. Effective immediately on the governor’s signature.

Adult guardianship. House Bill 842 (Costa Howard, D-Lombard; Connor, D-Crest Hill). Deletes language providing that if the respondent is unable to pay the fee of the guardian ad litem or appointed counsel, or both, the court may enter an order for the petitioner to pay the fees or such amounts as the respondent or the respondent’s estate may be unable to pay. It replaces this language with the discretion of the court. Prohibits these fees and costs from being assessed against the Office of the State Guardian, the public guardian, an adult protective services agency, the Illinois Department of Children and Family Services, or the agency designated by the governor under the Protection and Advocacy for Persons with Developmental Disabilities Act. Drop date Aug. 20, 2021. Effective Jan. 1, 2022.

Supported Decision-Making Agreement Act. House Bill 3849 (LaPointe, D-Chicago; Feigenholtz, D-Chicago). Creates the Supported Decision-Making Agreement Act. It authorizes the creation of supported decision-making agreements and allows a supporter to assist a principal with an intellectual or developmental disability in accessing, collecting, or obtaining information that is relevant to a decision authorized under the supported decision-making agreement. Drop date Aug. 30, 2021. Effective six months after the governor signs it.

Guardianship Act. Public Act 102-109 (Didech, D-Buffalo Grove; Feigenholtz, D-Chicago). Changes the definitions of developmental disability, intellectual disability, and related conditions. In the case of an intellectual disability, the required report for a petition for adjudication of disability and for appointment of a guardian may be a psychological evaluation of the respondent that has been performed by a clinical psychologist within one year of the date of the filing of the petition. Effective Jan. 1, 2022.

Unlawful real estate restrictive covenants. Public Act 102-110 (Didech, D-Buffalo Grove; Johnson, D-Waukegan). Creates a process for property owners and community associations to modify an “unlawful restrictive covenant” with the local recorder. It is defined as any recorded covenant or restriction that is void under the Illinois Human Rights Act. The recorder then files the requested modification with the local state’s attorney for a determination of whether it does violate the Act. If so, a modification will be recorded striking the offending covenant or restriction. Effective Jan. 1, 2022.

Uniform Recognition of Acknowledgments Act. House Bill 3764 (Zalewski, D-Chicago; Connor, D-Crest Hill). Changes the definition of “acknowledged before me” to mean that, among other things, the person acknowledging appeared before the person taking the acknowledgment in a manner prescribed by the law applicable in the place in which the acknowledgment is taken. Drop date Aug. 24, 2021. Effective Jan. 1, 2022.

Family law

Illinois Marriage and Dissolution of Marriage Act (IMDMA) counseling cleanup. Public Act 102-349 (Ness, D-Carpentersville; Hastings, D-Frankfort). As currently written, section 607.6(d) bars all information from therapy getting out. All information. Even if the court orders a guardian to talk to a therapist, the guardian and information are barred regardless of whether the parties sign releases. Deletes subparagraph (d) and provides that the Mental Health and Developmental Disabilities Confidentiality Act and the federal Health Insurance Portability and Accountability Act of 1996 protect the confidentiality and release of this kind of information. Effective Aug. 13, 2021.

IMDMA’s relocation tweak. Public Act 102-143 (Hastings, D-Frankfort; Burke, D-Oak Lawn). Amends the temporary-order statute to allow a party to seek permission to relocate while the case is pending if it is in the child’s best interest. Effective Jan. 1, 2022.

Interim attorney fees in the IMDMA. Public Act 102-480 (Stoneback; D-Skokie; Crowe, D-Maryville). Creates an avenue to include an allowance from the other party for an initial retainer fee to obtain an attorney. The request must include an affidavit from the attorney to be retained that the attorney has been contacted by the moving party and the attorney has agreed to enter an appearance if the request is granted. The party must also include a certificate that the interim fees will be used only for retaining the attorney. Effective Jan. 1, 2022.

Health insurance for children. Public Act 102-87 (Hastings, D-Frankfort; Burke, D-Oak Lawn). Ensures that children whose parents are divorced or never married have public or private health insurance when child support is determined by requiring the parents to obtain health insurance or maintain existing health insurance coverage for the child. Effective Jan. 1, 2022.

Civil litigation

Prejudgment interest. Public Act 102-6 (Harmon, D-Oak Park; Hoffman, D-Belleville). Requires prejudgment interest at the rate of six percent from the date the action is filed in personal-injury or wrongful-death cases. Exempts punitive damages, sanctions, and statutory attorney fees and costs. It also exempts the state and other governmental entities from being assessed prejudgment interest under this statute. Prejudgment interest is applicable only to the difference between the judgment and the highest rejected offer (within the applicable time frames). Prejudgment interest may not be added if the judgment is equal to or less than the amount of the highest written settlement that is not accepted or rejected by the plaintiff within 90 days of the offer. For any personal injury or wrongful death occurring before July 1, 2021, the prejudgment interest shall begin to accrue on July 1, 2021, or the date the action is filed, whichever is later. Effective July 1, 2021.

Judicial circuits. Public Act 102-380 (Belt, D-East St. Louis; Hoffman, Belleville). Creates a new 20th judicial circuit for St. Clair County and creates a new 24th for Randolph, Monroe, Washington, and Perry counties. It also increases the subcircuits in the 19th circuit from six to 10. Includes transition language. Effective on Aug. 13, 2021.

New Illinois Supreme Court districts. Public Act 102-11 (Harmon, D-Oak Park; Tarver, D-Chicago). Creates the Judicial Districts Act of 2021 to create new Illinois Appellate Court and Supreme Court districts outside of Cook County. The judicial circuits are left intact but may be moved to a new judicial district. The appellate courthouses remain where they currently sit to continue to act as the appellate courthouse for that district. Includes transition language. Effective June 4, 2021.

Business law

LLC operating agreements. Public Act 102-230 (Martwick, D-Chicago; Didech, D-Buffalo Grove). Before the 2016 rewrite, a LLC could not eliminate or reduce any fiduciary duties, including the traditional ones of fairness obligation, entity opportunities, or competing with the entity. It would prohibit an operating agreement from restricting or eliminating the duty to act fairly or the duty of care. Effective Jan. 1, 2022.

Uniform Electronic Transactions Act. Public Act 102-38 (Sims, D-Chicago; Andrade, D-Chicago). Creates the Uniform Electronic Transactions Act to join 48 other states if enacted. It replaces the Electronic Commerce Security Act of 1999. Effective June 25, 2021.

Business Corporation Act (BCA). Public Act 282 (Morrison, D-Highwood; Morgan, D-Highwood). Makes several changes to the BCA. It amends section 7.05 to provide that shareholder meetings can be held through means of remote communication if the corporation implements reasonable measures to ensure that a) each person participating remotely is a shareholder; and b) shareholders participating remotely have a reasonable opportunity to participate in the meeting and to vote on resolutions considered at the meeting. It allows for both fully remote shareholder meetings and hybrid meetings at which some shareholders are present in person and some shareholders participate remotely. Effective Jan. 1, 2022.

Ethics reform. Senate Bill 539 (Gillespie, D-Arlington Heights; Burke, D-Oak Lawn). Requires persons who lobby officials of counties, municipalities, and townships to register with the secretary of state and submit expenditure disclosures in the same manner as lobbyists working in the Illinois Capitol must do. Makes other changes for ethics at the Capitol. Drop date Aug. 24, 2021. Effective Jan. 1, 2022.

Restrictive employment covenants. Senate Bill 672 (Hunter, D-Chicago; Burke, D-Oak Lawn). Amends the Illinois Freedom to Work Act to create a statutory framework regulating restrictive covenants. Drop date Aug. 30, 2021. Effective Jan. 1, 2022.

Criminal and juvenile law

Juveniles and custodial interrogation. Public Act 102-101 (Peters, D-Chicago; Slaughter, D-Chicago). Presumes it to be inadmissible if a minor makes a confession during a custodial interrogation if a law enforcement officer knowingly engages in deception. “Deception” is defined as the knowing communication of false facts about evidence or unauthorized statements regarding leniency. Effective Jan. 1, 2022.

HIV transmission. Public Act 102-168 (Ammons, D-Urbana; Peters, D-Chicago). Repeals the criminal prosecution for transmission of HIV. Effective July 27, 2021.

Trailer bill to criminal justice reform bill. Public Act 102-28 (Slaughter, D-Chicago; Sims, D-Chicago). Cleans up issues that have cropped up with the criminal justice reform bill that was passed in veto session. Some of its changes include tweaking the use of force by law enforcement, body-camera issues, and delaying certain effective dates. Effective June 25, 2021.

Public defender task force. House Bill 2427 (Stava-Murray, D-Downers Grove; Villa, D-West Chicago). Creates the Public Defender Quality Defense Task Force. Its mission is to 1) examine the current caseload and determine the optimal caseload for public defenders in the state; 2) examine the quality of legal services being offered to defendants by public defenders of the state; and 3) make recommendations for improvement. Drop date Aug. 24, 2021. Effective immediately on the governor’s signature.

Court-appointed special advocates (CASA). House Bill 3277 (Costa-Howard, D-Lombard; Belt, D-East St. Louis). Requires the court in counties under three million to appoint a CASA if a CASA is available for petitions filed alleging a minor is abused, neglected, or dependent. In counties of three million or more, the court may do so, but no CASA may act as a guardian ad litem. House Bill 3277 creates educational and training standards. It also imposes certain duties on the CASA, such as conducting an independent assessment of the case’s facts and circumstances, maintaining regular contact with the minor, attending all court hearings to advocate for the minor’s best interests, and submitting written reports to the court about the minor’s best interests. Drop date Aug. 30, 2021. Effective on Jan. 1, 2022.

Lawyers’ Assistance Program (LAP). House Bill 835 (Halpin, D-Rock Island; Sims, D-Chicago). Transfers the funds in the LAP program from the state to the Attorney Registration and Disciplinary Committee. Drop date Aug. 23, 2021. Effective Jan. 1, 2022.

Jim Covington is the ISBA director of legislative affairs.
jcovington@isba.org