SB2663 103RD GENERAL ASSEMBLY

LRB103 36137 LNS 66228 b

103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
SB2663

Introduced 1/10/2024, by Sen. Sara Feigenholtz

SYNOPSIS AS INTRODUCED:

755 ILCS 5/11a-3	from Ch. 110 1/2, par. 11a-3
755 ILCS 5/11a-10	from Ch. 110 1/2, par. 11a-10
755 ILCS 5/11a-19	from Ch. 110 1/2, par. 11a-19
755 ILCS 9/5
755 ILCS 9/10
755 ILCS 9/45
755 ILCS 9/50
755 ILCS 40/25	from Ch. 110 1/2, par. 851-25

Amends the Probate Act of 1975. Provides that upon the filing of a petition by a reputable person or by the alleged person with a disability himself or on its own motion, the court may adjudge a person to be a person with a disability, but only if it has been demonstrated by clear and convincing evidence that the person is a person with a disability and the person cannot be supported through a supported decision-making agreement. Provides that at the time of the appointment of a guardian the court shall inform the ward of his right to petition for termination of an adjudication of disability using a supported decision-making agreement. Makes other changes. Amends the Supported Decision-Making Agreement Act. Changes the definition of "principal" to mean an adult (rather than an adult with intellectual or developmental disabilities) who seeks to enter, or has entered, into a supported decision-making agreement with a supporter. Allows a principal to elect to nominate the supporter as the principal's health care surrogate and may act as the principal's health care surrogate when the standards set forth in the Health Care Surrogate Act have been met. Makes conforming changes. Amends the Health Care Surrogate Act. Provides that a supporter designated under a supported decision-making agreement has second priority to make decisions on behalf of a patient.

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-3, 11a-10, and 11a-19 as follows:

(755 ILCS 5/11a-3) (from Ch. 110 1/2, par. 11a-3)

Sec. 11a-3. Adjudication of disability; Power to appoint guardian.

(a) Upon the filing of a petition by a reputable person or by the alleged person with a disability himself or on its own motion, the court may adjudge a person to be a person with a disability, but only if it has been demonstrated by clear and convincing evidence that the person is a person with a disability as defined in Section 11a-2 and the person cannot be supported through a supported decision-making agreement. If the court adjudges a person to be a person with a disability, the court may appoint (1) a guardian of his person, if it has been demonstrated by clear and convincing evidence that because of his disability he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the care of his person, or (2) a guardian of his estate, if it has been demonstrated by clear and convincing evidence that because of his disability he is unable to manage his estate or financial affairs, or (3) a guardian of his person and of his estate. The court may appoint co-guardians in accordance with Section 11a-15.

(b) Guardianship shall be utilized only as is necessary to promote the well-being of the person with a disability, to protect him from neglect, exploitation, or abuse, and to encourage development of his maximum self-reliance and independence. Guardianship shall be ordered only to the extent necessitated by the individual's actual mental, physical and adaptive limitations. The order shall conform with Sections 11a-12 and 11a-14.

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

(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. 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. 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-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 termination of an adjudication of disability using 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, 45, and 50 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 9/45)

Sec. 45. Authorization and witnesses.

(a) A principal and his or her supporter entering into a supported decision-making agreement shall sign and date the agreement in the presence of 2 or more subscribing witnesses who are at least 18 years of age. The principal's supporter shall not serve as a witness to the supported support decision-making agreement.

(b) The principal may elect to nominate the supporter as the principal's health care surrogate and may act as the principal's health care surrogate when the standards set forth in the Health Care Surrogate Act have been met.

(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.

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: ..........................................

(Yes/No) I name my supporter to act as my health care surrogate in the event I am determined, according to the terms of the Health Care Surrogate Act, to be unable to make my own medical decisions.

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.)

Section 15. The Health Care Surrogate Act is amended by changing Section 25 as follows:

(755 ILCS 40/25) (from Ch. 110 1/2, par. 851-25)

Sec. 25. Surrogate decision making.

(a) When a patient lacks decisional capacity, the health care provider must make a reasonable inquiry as to the availability and authority of a health care agent under the Powers of Attorney for Health Care Law. When no health care agent is authorized and available, the health care provider must make a reasonable inquiry as to the availability of possible surrogates listed in items (1) through (4) of this subsection. For purposes of this Section, a reasonable inquiry includes, but is not limited to, identifying a member of the patient's family or other health care agent by examining the patient's personal effects or medical records. If a family member or other health care agent is identified, an attempt to contact that person by telephone must be made within 24 hours after a determination by the provider that the patient lacks decisional capacity. No person shall be liable for civil damages or subject to professional discipline based on a claim of violating a patient's right to confidentiality as a result of making a reasonable inquiry as to the availability of a patient's family member or health care agent, except for willful or wanton misconduct.

The surrogate decision makers, as identified by the attending physician, are then authorized to make decisions as follows: (i) for patients who lack decisional capacity and do not have a qualifying condition, medical treatment decisions may be made in accordance with subsection (b-5) of Section 20; and (ii) for patients who lack decisional capacity and have a qualifying condition, medical treatment decisions including whether to forgo life-sustaining treatment on behalf of the patient may be made without court order or judicial involvement in the following order of priority:

(1) the patient's guardian of the person;

(1.5) the supporter when designated by the patient in a supported decision-making agreement under the Supported Decision-Making Agreement Act;

(2) the patient's spouse;

(3) any adult son or daughter of the patient;

(4) either parent of the patient;

(5) any adult brother or sister of the patient;

(6) any adult grandchild of the patient;

(7) a close friend of the patient;

(8) the patient's guardian of the estate;

(9) the patient's temporary custodian appointed under subsection (2) of Section 2-10 of the Juvenile Court Act of 1987 if the court has entered an order granting such authority pursuant to subsection (12) of Section 2-10 of the Juvenile Court Act of 1987.

The health care provider shall have the right to rely on any of the above surrogates if the provider believes after reasonable inquiry that neither a health care agent under the Powers of Attorney for Health Care Law nor a surrogate of higher priority is available.

Where there are multiple surrogate decision makers at the same priority level in the hierarchy, it shall be the responsibility of those surrogates to make reasonable efforts to reach a consensus as to their decision on behalf of the patient regarding the forgoing of life-sustaining treatment. If 2 or more surrogates who are in the same category and have equal priority indicate to the attending physician that they disagree about the health care matter at issue, a majority of the available persons in that category (or the parent with custodial rights) shall control, unless the minority (or the parent without custodial rights) initiates guardianship proceedings in accordance with the Probate Act of 1975. No health care provider or other person is required to seek appointment of a guardian.

(b) After a surrogate has been identified, the name, address, telephone number, and relationship of that person to the patient shall be recorded in the patient's medical record.

(c) Any surrogate who becomes unavailable for any reason may be replaced by applying the provisions of Section 25 in the same manner as for the initial choice of surrogate.

(d) In the event an individual of a higher priority to an identified surrogate becomes available and willing to be the surrogate, the individual with higher priority may be identified as the surrogate. In the event an individual in a higher, a lower, or the same priority level or a health care provider seeks to challenge the priority of or the life-sustaining treatment decision of the recognized surrogate decision maker, the challenging party may initiate guardianship proceedings in accordance with the Probate Act of 1975.

(e) The surrogate decision maker shall have the same right as the patient to receive medical information and medical records and to consent to disclosure.

(f) Any surrogate shall have the authority to make decisions for the patient until removed by the patient who no longer lacks decisional capacity, appointment of a guardian of the person, or the patient's death.

(Source: P.A. 100-959, eff. 1-1-19.)