ISBA Statehouse Review for the week of Jan. 17
ISBA Director of Legislative Affairs Jim Covington reviews bills in Springfield of interest to ISBA members. In this episode he covers Medical malpractice and tobacco litigation (House Bill 5151), Small Estate Affidavit (House Bill 25), Uniform Collaborative Law Act (Senate Bill 31), Victims’ Rights (HJRCA 1) and Local governments and debt collection (Senate Bill 36). More information on the bill is available below the video.
Medical malpractice and tobacco litigation. House Bill 5151 (Madigan, D-Chicago; Harmon, D-Oak Park) does three things in the Code of Civil Procedure. (1) Re-enacts and repeals statutory provisions so the text of those provisions conforms to the decisions of the Illinois Supreme Court in Best v. Taylor Machine Works and Lebron v. Gottlieb Memorial Hospital. (2) Caps contingent attorney’s fees in a medical malpractice action at 33 1/3 per cent of all sums recovered. (3) Limits the supersedeas bond requirement for all the appellants collectively in the tobacco settlement to be no more than $250 million. Sent to the Governor.
Small Estate Affidavit. House Bill 25 (Flowers, D-Chicago) and House Bill 162 (Chapia LaVia, D-Aurora) makes a number of changes to the Small Estate Affidavit statute. (1) Requires that the affidavit state that the burial and funeral expenses, medical bills, credit card bills, and real property taxes (instead of funeral expenses) have been or remain to be paid. (2) Makes a number of changes if there is a surviving spouse as follows. (a) If there is a surviving spouse, and the surviving spouse is unable to prepare the small estate affidavit or has declined to do so, the affiant must state the reason that the affiant has prepared the small estate affidavit rather than the surviving spouse. (b) If the reason for the surviving spouse's inability to prepare the affidavit is medically related, a letter from the surviving spouse's physician should be attached attesting to that effect. (c) If the surviving spouse is the affiant, he or she shall affirm that he or she was not separated from the decedent (3) If there is no surviving spouse and there is one or more minor children, the affiant must be a court-appointed guardian for one or more of the children. Referred to House Rules Committee.
Uniform Collaborative Law Act. Senate Bill 31 (Noland, D-Elgin) defines and regulates the use of collaborative law in family law cases. Referred to the Senate Committee on Assignments.
Victims’ Rights. HJRCA 1 (Lang, D-Skokie) is a constitutional amendment that creates standing as a party for victims in criminal law cases. Referred to House Rules Committee.
Local governments and debt collection. Senate Bill 36 (Silverstein, D-Chicago) allows local governments to immobilize vehicles of debtors as part of the post-judgment collection process. Immobilization may not occur until the judgment debtor has had the opportunity to appear and contest the immobilization at the citation hearing or fails to appear. If a unit of local government immobilizes a vehicle, it shall affix a notice of immobilization to the vehicle at the time the restraint device is attached to the vehicle. The judgment debtor must follow the procedures listed on the notice to pay the applicable costs within 24 hours of the immobilization. If the judgment debtor fails to respond within 24 hours of the immobilization, the unit of local government may tow and impound the vehicle. The impounded vehicle is eligible for auction or public sale if the judgment debtor fails to pay all applicable costs within 21 days after the vehicle is towed and impounded. Referred to the Senate Committee on Assignments.
Member Comments (1)
Re: HB 25 and changes to Small Estate Affidavit. I would support a change that would allow the affidavit to be used to collect funds even though known creditors are yet to be paid. However, I would not limit it to burial and funeral expenses, medical bills, credit card bills, and real property taxes. Rather, since this is an alternative to formal probate and the use of this procedure does not in any way absolve the affiant of any fiduciary duty that is owed to interested persons, including any class of creditors under 755 ILCS 5/18-10 as well as custodial, spousal and child claims, I would suggest that this simply identify any outstanding creditor and the class in which that creditor's claim exists. The affidavit then could name which creditor gets paid upon collection of the assets and if there remains insufficient assets to satisfy a class, then the pro rata distribution for the last class to be paid. Further, I would not support any of the amendments concerning a spouse. The spouse is not always the named executor for a variety of legitimate or lawful reasons and this would somehow place the spouse in an automatically superior position to informally administer the estate or to be afforded other rights and protections, even if the intention is not to include the spouse in this role. Whoever the affiant is has a fiduciary obligation to include the spouse as an interested party and to award a valid spousal claim in any event. This should not be altered.