Illinois General Assembly - Full Text of HB3372

LRB104 10553 JRC 20629 b

104TH GENERAL ASSEMBLY
State of Illinois
2025 and 2026
HB3372

Introduced 2/18/2025, by Rep. Michelle Mussman

SYNOPSIS AS INTRODUCED:

See Index

Amends the Probate Act of 1975. Requires the court at the guardianship hearing to inquire of the alleged disabled adult's interest in a supported decision-making agreement as an alternative and inform the ward of the ward's right to modify an adjudication of disability using a limited guardianship or termination of guardianship with a supported decision-making agreement. Amends the Supported Decision-Making Agreement Act. Changes the applicability of the Act by deleting the requirement that the adult must have an intellectual or developmental disability. Provides that Alzheimer's or dementia, by itself, does not void the presumption that an adult has the capacity to make decisions. Provides that the execution of a supported decision-making agreement does not preclude the ability of the adult who has entered into a supported decision-making agreement to act independently of the agreement. Requires a supporter in an agreement must complete the training and education developed by the Guardianship and Advocacy Commission within 45 days of signing the consent to act as a supporter. Provides that a supported decision-making agreement is terminated if: (i) there is a restraining order against the supporter by or on behalf of the principal; (ii) the principal revokes the agreement; (iii) the supporter resigns; (iv) ordered by a court; or (v) the agreement includes a termination date. Provides that a supported decision-making agreement is suspended while: (i) the conditions of the Health Care Surrogate Act are met, (ii) a medical or psychological evaluation has concluded that the principal lacks decisional capacity but a subsequent evaluation has not yet found the principal's decisional capacity restored; or (iii) the agency established in a durable power of attorney has begun but not yet terminated. Provides that upon the filing of a petition by an interested person, a court may suspend or terminate a supported decision-making agreement if necessary to ensure the well-being and safety of the principal.

A BILL FOR

AN ACT concerning civil law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Probate Act of 1975 is amended by changing Sections 11a-10, 11a-11, and 11a-19 as follows:

(755 ILCS 5/11a-10) (from Ch. 110 1/2, par. 11a-10)

Sec. 11a-10. Procedures preliminary to hearing.

(a) Upon the filing of a petition pursuant to Section 11a-8, the court shall set a date and place for hearing to take place within 30 days. The court shall appoint a guardian ad litem to report to the court concerning the respondent's best interests consistent with the provisions of this Section, except that the appointment of a guardian ad litem shall not be required when the court determines that such appointment is not necessary for the protection of the respondent or a reasonably informed decision on the petition. If the guardian ad litem is not a licensed attorney, he or she shall be qualified, by training or experience, to work with or advocate for persons with developmental disabilities, the mentally ill, persons with physical disabilities, the elderly, or persons with a disability due to mental deterioration, depending on the type of disability that is alleged in the petition. The court may allow the guardian ad litem reasonable compensation. The guardian ad litem may consult with a person who by training or experience is qualified to work with persons with a developmental disability, persons with mental illness, persons with physical disabilities, or persons with a disability due to mental deterioration, depending on the type of disability that is alleged. The guardian ad litem shall personally observe the respondent prior to the hearing and shall inform him orally and in writing of the contents of the petition and of his rights, including providing a copy of the notice of rights required under subsection (e). The guardian ad litem shall also attempt to elicit the respondent's position concerning the adjudication of disability, the proposed guardian, a proposed change in residential placement, changes in care that might result from the guardianship, and other areas of inquiry deemed appropriate by the court, including whether a supported decision-making agreement would be an appropriate alternative to guardianship or a limited guardianship would be an appropriate alternative to plenary guardianship. Notwithstanding any provision in the Mental Health and Developmental Disabilities Confidentiality Act or any other law, a guardian ad litem shall have the right to inspect and copy any medical or mental health record of the respondent which the guardian ad litem deems necessary, provided that the information so disclosed shall not be utilized for any other purpose nor be redisclosed except in connection with the proceedings. At or before the hearing, the guardian ad litem shall file a written report detailing his or her observations of the respondent, the responses of the respondent to any of the inquiries detailed in this Section, the opinion of the guardian ad litem or other professionals with whom the guardian ad litem consulted concerning the appropriateness of guardianship, and any other material issue discovered by the guardian ad litem, including whether a supported decision-making agreement would be an appropriate alternative to guardianship or a limited guardianship would be an appropriate alternative to plenary guardianship. The guardian ad litem shall appear at the hearing and testify as to any issues presented in his or her report.

(b) The court (1) may appoint counsel for the respondent, if the court finds that the interests of the respondent will be best served by the appointment, and (2) shall appoint counsel upon the respondent's request or if the respondent takes a position adverse to that of the guardian ad litem. The respondent shall be permitted to obtain the appointment of counsel either at the hearing or by any written or oral request communicated to the court prior to the hearing. The summons shall inform the respondent of this right to obtain appointed counsel. The court may allow counsel for the respondent reasonable compensation.

(c) The allocation of guardian ad litem fees and costs is within the discretion of the court. No legal fees, appointed counsel fees, guardian ad litem fees, or costs shall be assessed against the Office of the State Guardian, the public guardian, an adult protective services agency, the Department of Children and Family Services, or the agency designated by the Governor under Section 1 of the Protection and Advocacy for Persons with Developmental Disabilities Act.

(d) The hearing may be held at such convenient place as the court directs, including at a facility in which the respondent resides.

(e) Unless he is the petitioner, the respondent shall be personally served with a copy of the petition and a summons not less than 14 days before the hearing. The summons shall be printed in large, bold type and shall include the following:

NOTICE OF RIGHTS OF RESPONDENT

You have been named as a respondent in a guardianship petition asking that you be declared a person with a disability. If the court grants the petition, a guardian will be appointed for you. A copy of the guardianship petition is attached for your convenience. The date and time of the hearing are: The place where the hearing will occur is: The Judge's name and phone number is:

If a guardian is appointed for you, the guardian may be given the right to make all important personal decisions for you, such as where you may live, what medical treatment you may receive, what places you may visit, and who may visit you. A guardian may also be given the right to control and manage your money and other property, including your home, if you own one. You may lose the right to make these decisions for yourself.

You have the following legal rights:

(1) You have the right to be present at the court hearing.

(2) You have the right to be represented by a lawyer, either one that you retain, or one appointed by the Judge.

(3) You have the right to ask for a jury of six persons to hear your case.

(4) You have the right to present evidence to the court and to confront and cross-examine witnesses.

(5) You have the right to ask the Judge to appoint an independent expert to examine you and give an opinion about your need for a guardian.

(6) You have the right to ask that the court hearing be closed to the public.

(7) You have the right to tell the court whom you prefer to have for your guardian.

(8) You have the right to ask a judge to find that although you lack some capacity to make your own decisions, you can make other decisions, and therefore it is best for the court to appoint only a limited guardian for you.

You do not have to attend the court hearing if you do not want to be there. If you do not attend, the Judge may appoint a guardian if the Judge finds that a guardian would be of benefit to you. The hearing will not be postponed or canceled if you do not attend. If you are unable to attend the hearing in person or you will suffer harm if you attend, the Judge can decide to hold the hearing at a place that is convenient. The Judge can also follow the rule of the Supreme Court of this State, or its local equivalent, and decide if a video conference is appropriate.

IT IS VERY IMPORTANT THAT YOU ATTEND THE HEARING IF YOU DO NOT WANT A GUARDIAN OR IF YOU WANT SOMEONE OTHER THAN THE PERSON NAMED IN THE GUARDIANSHIP PETITION TO BE YOUR GUARDIAN. IF YOU DO NOT WANT A GUARDIAN OR IF YOU HAVE ANY OTHER PROBLEMS, YOU SHOULD CONTACT AN ATTORNEY OR COME TO COURT AND TELL THE JUDGE.

Service of summons and the petition may be made by a private person 18 years of age or over who is not a party to the action.

[END OF FORM]

(f) Notice of the time and place of the hearing shall be given by the petitioner by mail or in person to those persons, including the proposed guardian, whose names and addresses appear in the petition and who do not waive notice, not less than 14 days before the hearing.

(Source: P.A. 102-72, eff. 1-1-22; 102-191, eff. 1-1-22; 102-813, eff. 5-13-22.)

(755 ILCS 5/11a-11) (from Ch. 110 1/2, par. 11a-11)

Sec. 11a-11. Hearing.

(a) The respondent is entitled to be represented by counsel, to demand a jury of 6 persons, to present evidence, and to confront and cross-examine all witnesses. The hearing may be closed to the public on request of the respondent, the guardian ad litem, or appointed or other counsel for the respondent. Unless excused by the court upon a showing that the respondent refuses to be present or will suffer harm if required to attend, the respondent shall be present at the hearing.

(b) (Blank).

(c) (Blank).

(d) In an uncontested proceeding for the appointment of a guardian the person who prepared the report required by Section 11a-9 will only be required to testify at trial upon order of court for cause shown.

(e) At the hearing the court shall inquire regarding: (1) the nature and extent of respondent's general intellectual and physical functioning; (2) the extent of the impairment of his adaptive behavior if he is a person with a developmental disability, or the nature and severity of his mental illness if he is a person with mental illness; (3) the understanding and capacity of the respondent to make and communicate responsible decisions concerning his person; (4) the capacity of the respondent to manage his estate and his financial affairs; (5) the appropriateness of proposed and alternate living arrangements; (6) the impact of the disability upon the respondent's functioning in the basic activities of daily living and the important decisions faced by the respondent or normally faced by adult members of the respondent's community; and (7) the use of a supported decision-making agreement or limited guardianship as an alternative to plenary guardianship; and (8) any other area of inquiry deemed appropriate by the court.

(f) An authenticated transcript of the evidence taken in a judicial proceeding concerning the respondent under the Mental Health and Developmental Disabilities Code is admissible in evidence at the hearing.

(g) If the petition is for the appointment of a guardian for a beneficiary of the Veterans Administration who has a disability, a certificate of the Administrator of Veterans Affairs or his representative stating that the beneficiary has been determined to be incompetent by the Veterans Administration on examination in accordance with the laws and regulations governing the Veterans Administration in effect upon the date of the issuance of the certificate and that the appointment of a guardian is a condition precedent to the payment of any money due the beneficiary by the Veterans Administration, is admissible in evidence at the hearing.

(Source: P.A. 98-1094, eff. 1-1-15; 99-143, eff. 7-27-15.)

(755 ILCS 5/11a-19) (from Ch. 110 1/2, par. 11a-19)

Sec. 11a-19. Notice of right to seek modification. At the time of the appointment of a guardian the court shall inform the ward of his right under Section 11a-20 to petition for termination of adjudication of disability, revocation of the letters of guardianship of the estate or person, or both, or modification of the duties of the guardian, or modification of an adjudication of disability using a limited guardianship or termination of guardianship with a supported decision-making agreement under the Supported Decision Making Agreement Act and shall give the ward a written statement explaining this right and the procedures for petitioning the court. The notice shall be in large type and shall be in a format substantially similar to the following:

IN THE CIRCUIT COURT OF THE ... JUDICIAL CIRCUIT OF ILLINOIS

... COUNTY IN RE THE ESTATE OF )

) ....................., ) CASE NO. .... a Person with a Disability, )

NOTICE TO WARD OF RIGHT TO SEEK MODIFICATION

[Insert name] was appointed your Guardian of the Person on [insert date].

[Insert name] was appointed your Guardian of the Estate on [insert date].

You have the right to ask the court to dismiss this guardianship, to revoke the power of this guardian to act for you, or to modify the duties of any such guardian.

You, or someone on your behalf, can make this request, even by an informal letter, a telephone call, or a visit to the court. You should send your letter to the court at the following address; [insert name of judge and mailing address of courthouse].

The court may appoint a Guardian ad Litem to investigate and report to the court. You have the right to have a lawyer appointed for you, to have a hearing before the court, to have a jury of six persons decide the facts, to present evidence and tell your story, and to ask witnesses any questions in cross-examination.

Entered this.....day of.............., 20....

.................

JUDGE

[..] At the time of the appointment of the Guardian in this cause, the court informed the ward of his or her rights under Section 11a-20 of the Illinois Probate Act and gave the ward, in open court, the above-written notice explaining these rights and procedures.

or

[..] The Clerk of the Circuit Court shall mail a copy of the above-written notice to the above-named person with a disability at the residence address set forth in the petition filed herein.

Copy Mailed:.................................................

................................

Clerk of the Circuit Court

[END OF FORM]

(Source: P.A. 102-72, eff. 1-1-22.)

Section 10. The Supported Decision-Making Agreement Act is amended by changing Sections 5, 10, 15, 30, 50, and 70 as follows:

(755 ILCS 9/5)

Sec. 5. Purpose; interpretation. The purpose of this Act is to recognize a less-restrictive alternative to guardianship for adults with intellectual and developmental disabilities who need assistance with decisions regarding daily living.

This Act shall be administered and interpreted in accordance with the following principles:

(1) All adults should be able to live in the manner they choose and to accept or refuse support, assistance, or protection as long as they do not harm others and are capable of making decisions about those matters.

(2) All adults should be able to be informed about and, to the best of their ability, participate in decisions regarding daily living.

(3) All adults should receive the most effective yet least restrictive and intrusive forms of support, assistance, and protection when they are unable to care for themselves or manage their affairs alone.

(4) The values, beliefs, wishes, cultural norms, and traditions that the principal holds should be respected.

(Source: P.A. 102-614, eff. 2-27-22.)

(755 ILCS 9/10)

Sec. 10. Definitions. As used in this Act:

"Adult" means a person who is at least 18 years of age.

"Everyday life decisions" means decisions that support one's existence, including, but not limited to, decisions regarding medical care and treatment, one's residence, work, finances, and social life.

"Principal" means an adult with intellectual or developmental disabilities who seeks to enter, or has entered, into a supported decision-making agreement with a supporter under this Act.

"Supported decision-making agreement" means an agreement between a principal and a supporter under this Act.

"Supporter" means an adult who has entered into a supported decision-making agreement with a principal under this Act.

(Source: P.A. 102-614, eff. 2-27-22.)

(755 ILCS 9/15)

Sec. 15. Presumption of capability.

(a) All adults are presumed to be capable of making decisions regarding daily living and to have capacity unless otherwise determined by a court. A diagnosis of mental illness, intellectual disability, or developmental disability, Alzheimer's Disease, or dementia, of itself, does not void the presumption of capacity.

(b) The manner in which an adult communicates with others is not grounds for deciding that the adult is incapable of managing the affairs of the adult.

(c) The execution of a supported decision-making agreement may not be used as evidence of capacity or incapacity in any civil or criminal proceeding, however, the existence of such an agreement may be entered into evidence for purposes other than as evidence of capacity or incapacity. The execution of a supported decision-making agreement and does not preclude the ability of the adult who has entered into a supported decision-making agreement to act independently of the agreement.

(Source: P.A. 102-614, eff. 2-27-22.)

(755 ILCS 9/30)

Sec. 30. Supporter duties.

(a) Except as otherwise provided by a supported decision-making agreement, a supporter may:

(1) Assist the principal in understanding information, options, responsibilities, and consequences of the life decisions of the principal, including those decisions related to the affairs or support services of the principal.

(2) Help the principal access, obtain, and understand any information that is relevant to any given life decision, including a medical, psychological, financial, or educational decision, or any treatment records or records necessary to manage the affairs or support services of the principal.

(3) Assist the principal in finding, obtaining, making appointments for, and implementing the support services or plans for support services of the principal.

(4) Help the principal monitor information about the affairs or support services of the principal, including keeping track of future necessary or recommended services.

(5) Ascertain the wishes and decisions of the principal in order to advocate that the wishes and decisions of an individual with disabilities are implemented.

(b) A supporter shall act with the care, competence, and diligence ordinarily exercised by an individual in a similar circumstance, with due regard to the possession of, or lack of, special skills or expertise.

(c) A supporter shall complete the seek training developed by the Guardianship and Advocacy Commission and education regarding the responsibilities and limitations of the supporter role within 45 days of signing the consent to act as a supporter. The Guardianship and Advocacy Commission shall provide public information about this Act and the supporter role, responsibilities, and limitations.

The Guardianship and Advocacy Commission shall develop training and education materials for both principals and supporters, including, but not limited to, sample agreements that will be posted on the website of the Commission along with public awareness materials.

(Source: P.A. 102-614, eff. 2-27-22.)

(755 ILCS 9/50)

Sec. 50. Agreement instrument. A supported decision-making agreement is valid if it substantially follows the following form:

"SUPPORTED DECISION-MAKING AGREEMENT

Important Information for the Supporter: Duties

If you agree to provide support to the principal, you have a duty to:

(1) act in good faith;

(2) act within the authority granted in this agreement;

(3) act loyally and without self-interest; and

(4) avoid conflicts of interest; and .

(5) complete the training required by subsection (c) of Section 30.

Appointment of Supporter

I, (insert principal's name), make this agreement of my own free will.

I agree and designate that the following individual is my supporter:

Name: ...............................................

Address: ............................................

Phone Number: .......................................

Email Address: ..........................................

My supporter is to help me make decisions for myself and may help me with making everyday life decisions relating to the following:

(Yes/No) obtaining food, clothing, and shelter.

(Yes/No) taking care of my physical and emotional health.

(Yes/No) managing my financial affairs.

(Yes/No) applying for public benefits.

(Yes/No) helping me find work.

(Yes/No) assisting with residential services.

(Yes/No) helping me with school.

(Yes/No) helping me advocate for myself.

My supporter is not allowed to make decisions for me. To help me with my decisions, my supporter may:

(1) help me access, collect, or obtain information that is relevant to a decision, including medical, psychological, financial, educational, housing, and treatment records;

(2) help me understand my options so that I can make an informed decision; and

(3) help me communicate my decision to appropriate persons.

I want my supporter to have:

(Yes/No) A release allowing my supporter to see protected health information under the Health Insurance Portability and Accountability Act of 1996 is attached.

(Yes/No) A release allowing my supporter to see confidential information under the Mental Health and Developmental Disabilities Confidentiality Act is attached.

(Yes/No) A release allowing my supporter to see educational records under the Family Educational Rights and Privacy Act of 1974 and the Illinois School Records Act is attached.

(Yes/No) A release allowing my supporter to see substance abuse records under Confidentiality of Alcohol and Drug Abuse Patient Records regulations is attached.

This supported decision-making agreement is effective immediately and will continue until (insert date) or until the agreement is terminated by my supporter or me or by operation of law.

Signed this .... day of ........, 20....

(Signature of Principal) (Printed name of principal)

Consent of Supporter

I, (name of supporter), consent to act as a supporter under this agreement.

(Signature of supporter) (Printed name of supporter)

(Witness 1 signature) (Printed name of witness 1)

(Witness 2 signature) (Printed name of witness 2)

WARNING: PROTECTION FOR THE ADULT WITH A DISABILITY

IF A PERSON WHO RECEIVES A COPY OF THIS AGREEMENT OR IS AWARE OF THE EXISTENCE OF THIS AGREEMENT HAS CAUSE TO BELIEVE THAT THE ADULT WITH A DISABILITY IS BEING ABUSED, NEGLECTED, OR EXPLOITED BY THE SUPPORTER, THE PERSON SHALL REPORT THE ALLEGED ABUSE, NEGLECT, OR EXPLOITATION TO THE ADULT PROTECTIVE SERVICES HOTLINE: [phone] (TTY)."

This form is not intended to exclude other forms or agreements that identify the principal, supporter, and types of supports.

(Source: P.A. 102-614, eff. 2-27-22.)

(755 ILCS 9/70)

Sec. 70. Term of agreement; revocation.

(a) A supported decision-making agreement extends until terminated by either party or by the terms of the agreement.

(b) A supported decision-making agreement is terminated if:

(1) the Office of Inspector General or Adult Protective Services substantiated an allegation of abuse or neglect by the supporter; or

(2) there is a restraining order against the supporter by or on behalf of the principal; .

(3) the principal revokes the agreement;

(4) the supporter resigns;

(5) ordered by a court; or

(6) the agreement includes a termination date.

(b-5) A supported decision-making agreement is suspended while:

(1) the conditions of Section 15 of the Health Care Surrogate Act are met;

(2) a medical or psychological evaluation has concluded that the principal lacks decisional capacity but a subsequent evaluation has not yet found the principal's decisional capacity restored; or

(3) the agency established in a durable power of attorney has begun but not yet terminated.

(c) A principal may revoke his or her supported decision-making agreement and invalidate the supported decision-making agreement at any time by:

(1) canceling or destroying the supported decision-making agreement or directing another in the presence of the principal to destroy the decision-making agreement;

(2) executing a statement, in writing, that is signed and dated by the principal, expressing his or her intent to revoke the supported decision-making agreement; or

(3) verbally expressing the intent of the principal to revoke the supported decision-making agreement in the presence of 2 witnesses.

(d) Unless the supported decision-making agreement provides a different method for the resignation of the supporter support, a supporter may resign by giving notice to the principal.

(e) The last signed agreement holds.

(f) Upon the filing of a petition by an interested person, a court may suspend or terminate a supported decision-making agreement when necessary to ensure the well-being and safety of the principal.

(Source: P.A. 102-614, eff. 2-27-22.)