Illinois General Assembly - Full Text of HB3849
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Full Text of HB3849  102nd General Assembly

HB3849enr 102ND GENERAL ASSEMBLY

  
  
  

 


 
HB3849 EnrolledLRB102 12658 LNS 17997 b

1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 1. Short title. This Act may be cited as the
5Supported Decision-Making Agreement Act.
 
6    Section 5. Purpose; interpretation. The purpose of this
7Act is to recognize a less-restrictive alternative to
8guardianship for adults with intellectual and developmental
9disabilities who need assistance with decisions regarding
10daily living.
11    This Act shall be administered and interpreted in
12accordance with the following principles:
13        (1) All adults should be able to live in the manner
14    they choose and to accept or refuse support, assistance,
15    or protection as long as they do not harm others and are
16    capable of making decisions about those matters.
17        (2) All adults should be able to be informed about
18    and, to the best of their ability, participate in
19    decisions regarding daily living.
20        (3) All adults should receive the most effective yet
21    least restrictive and intrusive forms of support,
22    assistance, and protection when they are unable to care
23    for themselves or manage their affairs alone.

 

 

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1        (4) The values, beliefs, wishes, cultural norms, and
2    traditions that the principal holds should be respected.
 
3    Section 10. Definitions. As used in this Act:
4    "Adult" means a person who is at least 18 years of age.
5    "Everyday life decisions" means decisions that support
6one's existence, including, but not limited to, decisions
7regarding medical care and treatment, one's residence, work,
8finances, and social life.
9    "Principal" means an adult with intellectual or
10developmental disabilities who seeks to enter, or has entered,
11into a supported decision-making agreement with a supporter
12under this Act.
13    "Supported decision-making agreement" means an agreement
14between a principal and a supporter under this Act.
15    "Supporter" means an adult who has entered into a
16supported decision-making agreement with a principal under
17this Act.
 
18    Section 15. Presumption of capability.
19    (a) All adults are presumed to be capable of making
20decisions regarding daily living and to have capacity unless
21otherwise determined by a court. A diagnosis of mental
22illness, intellectual disability, or developmental disability,
23of itself, does not void the presumption of capacity.
24    (b) The manner in which an adult communicates with others

 

 

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1is not grounds for deciding that the adult is incapable of
2managing the affairs of the adult.
3    (c) The execution of a supported decision-making agreement
4may not be used as evidence of capacity or incapacity in any
5civil or criminal proceeding and does not preclude the ability
6of the adult who has entered into a supported decision-making
7agreement to act independently of the agreement.
 
8    Section 20. Supporter disqualifications. The following
9persons are disqualified from acting as a supporter:
10        (1) a person who is an employer or employee of the
11    principal, unless the person is an immediate family member
12    of the principal;
13        (2) a person directly providing paid support services
14    to the principal, unless the person is an immediate family
15    member of the principal;
16        (3) a person who works for an agency that is
17    financially responsible for the care of the principal;
18        (4) a person who is listed on the Health Care Worker
19    Registry maintained by the Illinois Department of Public
20    Health as ineligible to work;
21        (5) an individual who is the subject of a civil or
22    criminal order prohibiting contact with the principal; and
23        (6) a person who has been convicted of:
24            (i) a sex offense;
25            (ii) aggravated assault;

 

 

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1            (iii) fraud;
2            (iv) theft;
3            (v) forgery; or
4            (vi) extortion.
 
5    Section 25. Authority of the supporter. A supporter may
6exercise the authority granted to the supporter in the
7supported decision-making agreement.
 
8    Section 30. Supporter duties.
9    (a) Except as otherwise provided by a supported
10decision-making agreement, a supporter may:
11        (1) Assist the principal in understanding information,
12    options, responsibilities, and consequences of the life
13    decisions of the principal, including those decisions
14    related to the affairs or support services of the
15    principal.
16        (2) Help the principal access, obtain, and understand
17    any information that is relevant to any given life
18    decision, including a medical, psychological, financial,
19    or educational decision, or any treatment records or
20    records necessary to manage the affairs or support
21    services of the principal.
22        (3) Assist the principal in finding, obtaining, making
23    appointments for, and implementing the support services or
24    plans for support services of the principal.

 

 

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1        (4) Help the principal monitor information about the
2    affairs or support services of the principal, including
3    keeping track of future necessary or recommended services.
4        (5) Ascertain the wishes and decisions of the
5    principal in order to advocate that the wishes and
6    decisions of an individual with disabilities are
7    implemented.
8    (b) A supporter shall act with the care, competence, and
9diligence ordinarily exercised by an individual in a similar
10circumstance, with due regard to the possession of, or lack
11of, special skills or expertise.
12    (c) A supporter shall seek training and education
13regarding the responsibilities and limitations of the
14supporter role. The Guardianship and Advocacy Commission shall
15provide public information about this Act and the supporter
16role, responsibilities, and limitations.
17    The Guardianship and Advocacy Commission shall develop
18training and education materials for both principals and
19supporters, including, but not limited to, sample agreements
20that will be posted on the website of the Commission along with
21public awareness materials.
 
22    Section 35. Supporter prohibitions. A supporter is
23prohibited from:
24        (1) Exerting undue influence upon, or making decisions
25    on behalf of, the principal.

 

 

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1        (2) Obtaining, without the consent of the principal,
2    information that is not reasonably related to matters with
3    which the supporter is authorized to assist under the
4    supported decision-making agreement.
5        (3) Using, without the consent of the principal,
6    information acquired for a purpose other than assisting
7    the principal to make a decision under the supported
8    decision-making agreement.
9        (4) Receiving compensation for acting as a supporter,
10    except as otherwise provided by this Act.
 
11    Section 40. Access to personal information.
12    (a) A supporter is only authorized to assist the principal
13in accessing, collecting, or obtaining information that is
14relevant to a decision authorized under the supported
15decision-making agreement.
16    (b) If a supporter assists a principal in accessing,
17collecting, or obtaining personal information, including
18protected health information under the Health Insurance
19Portability and Accountability Act of 1996 or educational
20records under the Family Educational Rights and Privacy Act of
211974, the supporter shall ensure that the information is kept
22privileged and confidential, as applicable, and is not subject
23to unauthorized access, use, or disclosure.
24    (c) The existence of a supported decision-making agreement
25does not preclude a principal from seeking personal

 

 

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1information without the assistance of the supporter.
 
2    Section 45. Authorization and witnesses. A principal and
3his or her supporter entering into a supported decision-making
4agreement shall sign and date the agreement in the presence of
52 or more subscribing witnesses who are at least 18 years of
6age. The principal's supporter shall not serve as a witness to
7the support decision-making agreement.
 
8    Section 50. Agreement instrument. A supported
9decision-making agreement is valid if it substantially follows
10the following form:
11
"SUPPORTED DECISION-MAKING AGREEMENT

 
12
Important Information for the Supporter: Duties

 
13    If you agree to provide support to the principal, you have
14a duty to:
15        (1) act in good faith;
16        (2) act within the authority granted in this
17    agreement;
18        (3) act loyally and without self-interest; and
19        (4) avoid conflicts of interest.
 
20
Appointment of Supporter

 

 

 

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1    I, (insert principal's name), make this agreement of my
2own free will.
 
3    I agree and designate that the following individual is my
4supporter:
5    Name: ...............................................
6    Address: ............................................
7    Phone Number: .......................................
8    Email Address: ..........................................
 
9    My supporter is to help me make decisions for myself and
10may help me with making everyday life decisions relating to
11the following:
12    (Yes/No)   obtaining food, clothing, and shelter.
13    (Yes/No)   taking care of my physical and emotional
14health.
15    (Yes/No)   managing my financial affairs.
16    (Yes/No)   applying for public benefits.
17    (Yes/No)   helping me find work.
18    (Yes/No)   assisting with residential services.
19    (Yes/No)   helping me with school.
20    (Yes/No)   helping me advocate for myself.
 
21    My supporter is not allowed to make decisions for me. To
22help me with my decisions, my supporter may:
23        (1) help me access, collect, or obtain information

 

 

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1    that is relevant to a decision, including medical,
2    psychological, financial, educational, housing, and
3    treatment records;
4        (2) help me understand my options so that I can make an
5    informed decision; and
6        (3) help me communicate my decision to appropriate
7    persons.
 
8    I want my supporter to have:
9        (Yes/No)  A release allowing my supporter to see
10    protected health information under the Health Insurance
11    Portability and Accountability Act of 1996 is attached.
12        (Yes/No)  A release allowing my supporter to see
13    confidential information under the Mental Health and
14    Developmental Disabilities Confidentiality Act is
15    attached.
16        (Yes/No)  A release allowing my supporter to see
17    educational records under the Family Educational Rights
18    and Privacy Act of 1974 and the Illinois School Records
19    Act is attached.
20        (Yes/No)  A release allowing my supporter to see
21    substance abuse records under Confidentiality of Alcohol
22    and Drug Abuse Patient Records regulations is attached.
 
23    This supported decision-making agreement is effective
24immediately and will continue until (insert date) or until the

 

 

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1agreement is terminated by my supporter or me or by operation
2of law.
3    Signed this .... day of ........, 20....
 
4    (Signature of Principal)   (Printed name of principal)
 
5
Consent of Supporter

 
6    I, (name of supporter), consent to act as a supporter
7under this agreement.
 
8    (Signature of supporter)  (Printed name of supporter)
9    (Witness 1 signature)      (Printed name of witness 1)
10    (Witness 2 signature)      (Printed name of witness 2)
 
11
WARNING: PROTECTION FOR THE ADULT WITH A DISABILITY

 
12IF A PERSON WHO RECEIVES A COPY OF THIS AGREEMENT OR IS AWARE
13OF THE EXISTENCE OF THIS AGREEMENT HAS CAUSE TO BELIEVE THAT
14THE ADULT WITH A DISABILITY IS BEING ABUSED, NEGLECTED, OR
15EXPLOITED BY THE SUPPORTER, THE PERSON SHALL REPORT THE
16ALLEGED ABUSE, NEGLECT, OR EXPLOITATION TO THE ADULT
17PROTECTIVE SERVICES HOTLINE: 1-866-800-1409, 1-888-206-1327
18(TTY)."
 
19     This form is not intended to exclude other forms or

 

 

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1agreements that identify the principal, supporter, and types
2of supports.
 
3    Section 55. Reliance on agreement; limitation of
4liability.
5    (a) A person who receives the original or a copy of a
6supported decision-making agreement shall rely on the
7agreement.
8    (b) A person is not subject to criminal or civil liability
9and has not engaged in professional misconduct for an act or
10omission if the act or omission is done in good faith and in
11reliance on a supported decision-making agreement.
 
12    Section 60. Recognition of supporters. A decision or
13request made or communicated with the assistance of a
14supporter in conformity with this Act shall be recognized for
15the purposes of any provision of law as the decision or request
16of the principal and may be enforced by the principal or
17supporter in law or equity on the same basis as a decision or
18request of the principal.
 
19    Section 65. Reporting of suspected abuse, neglect, or
20exploitation. If a person who receives a copy of a supported
21decision-making agreement or is aware of the existence of a
22supported decision-making agreement and has cause to believe
23that the adult with a disability is being abused, neglected,

 

 

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1or exploited by the supporter, the person shall report the
2alleged abuse, neglect, or exploitation to the Adult
3Protective Services Hotline: 1-866-800-1409, 1-888-206-1327
4(TTY).
 
5    Section 70. Term of agreement; revocation.
6    (a) A supported decision-making agreement extends until
7terminated by either party or by the terms of the agreement.
8    (b) A supported decision-making agreement is terminated
9if:
10        (1) the Office of Inspector General or Adult
11    Protective Services substantiated an allegation of abuse
12    or neglect by the supporter; or
13        (2) there is a restraining order against the supporter
14    by the principal.
15    (c) A principal may revoke his or her supported
16decision-making agreement and invalidate the supported
17decision-making agreement at any time by:
18        (1) canceling or destroying the supported
19    decision-making agreement or directing another in the
20    presence of the principal to destroy the decision-making
21    agreement;
22        (2) executing a statement, in writing, that is signed
23    and dated by the principal, expressing his or her intent
24    to revoke the supported decision-making agreement; or
25        (3) verbally expressing the intent of the principal to

 

 

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1    revoke the supported decision-making agreement in the
2    presence of 2 witnesses.
3    (d) Unless the supported decision-making agreement
4provides a different method for the resignation of the
5support, a supporter may resign by giving notice to the
6principal.
7    (e) The last signed agreement holds.
 
8    Section 99. Effective date. This Act takes effect 6 months
9after becoming law.