Illinois General Assembly - Full Text of SB2663
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Full Text of SB2663  103rd General Assembly



State of Illinois
2023 and 2024


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


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.

LRB103 36137 LNS 66228 b





SB2663LRB103 36137 LNS 66228 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 5. The Probate Act of 1975 is amended by changing
5Sections 11a-3, 11a-10, and 11a-19 as follows:
6    (755 ILCS 5/11a-3)  (from Ch. 110 1/2, par. 11a-3)
7    Sec. 11a-3. Adjudication of disability; Power to appoint
9    (a) Upon the filing of a petition by a reputable person or
10by the alleged person with a disability himself or on its own
11motion, the court may adjudge a person to be a person with a
12disability, but only if it has been demonstrated by clear and
13convincing evidence that the person is a person with a
14disability as defined in Section 11a-2 and the person cannot
15be supported through a supported decision-making agreement. If
16the court adjudges a person to be a person with a disability,
17the court may appoint (1) a guardian of his person, if it has
18been demonstrated by clear and convincing evidence that
19because of his disability he lacks sufficient understanding or
20capacity to make or communicate responsible decisions
21concerning the care of his person, or (2) a guardian of his
22estate, if it has been demonstrated by clear and convincing
23evidence that because of his disability he is unable to manage



SB2663- 2 -LRB103 36137 LNS 66228 b

1his estate or financial affairs, or (3) a guardian of his
2person and of his estate. The court may appoint co-guardians
3in accordance with Section 11a-15.
4    (b) Guardianship shall be utilized only as is necessary to
5promote the well-being of the person with a disability, to
6protect him from neglect, exploitation, or abuse, and to
7encourage development of his maximum self-reliance and
8independence. Guardianship shall be ordered only to the extent
9necessitated by the individual's actual mental, physical and
10adaptive limitations. The order shall conform with Sections
1111a-12 and 11a-14.
12(Source: P.A. 102-72, eff. 1-1-22.)
13    (755 ILCS 5/11a-10)  (from Ch. 110 1/2, par. 11a-10)
14    Sec. 11a-10. Procedures preliminary to hearing.
15    (a) Upon the filing of a petition pursuant to Section
1611a-8, the court shall set a date and place for hearing to take
17place within 30 days. The court shall appoint a guardian ad
18litem to report to the court concerning the respondent's best
19interests consistent with the provisions of this Section,
20except that the appointment of a guardian ad litem shall not be
21required when the court determines that such appointment is
22not necessary for the protection of the respondent or a
23reasonably informed decision on the petition. If the guardian
24ad litem is not a licensed attorney, he or she shall be
25qualified, by training or experience, to work with or advocate



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1for persons with developmental disabilities, the mentally ill,
2persons with physical disabilities, the elderly, or persons
3with a disability due to mental deterioration, depending on
4the type of disability that is alleged in the petition. The
5court may allow the guardian ad litem reasonable compensation.
6The guardian ad litem may consult with a person who by training
7or experience is qualified to work with persons with a
8developmental disability, persons with mental illness, persons
9with physical disabilities, or persons with a disability due
10to mental deterioration, depending on the type of disability
11that is alleged. The guardian ad litem shall personally
12observe the respondent prior to the hearing and shall inform
13him orally and in writing of the contents of the petition and
14of his rights, including providing a copy of the notice of
15rights required under subsection (e). The guardian ad litem
16shall also attempt to elicit the respondent's position
17concerning the adjudication of disability, the proposed
18guardian, a proposed change in residential placement, changes
19in care that might result from the guardianship, and other
20areas of inquiry deemed appropriate by the court, including
21whether a supported decision-making agreement would be an
22appropriate alternative to guardianship. Notwithstanding any
23provision in the Mental Health and Developmental Disabilities
24Confidentiality Act or any other law, a guardian ad litem
25shall have the right to inspect and copy any medical or mental
26health record of the respondent which the guardian ad litem



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1deems necessary, provided that the information so disclosed
2shall not be utilized for any other purpose nor be redisclosed
3except in connection with the proceedings. At or before the
4hearing, the guardian ad litem shall file a written report
5detailing his or her observations of the respondent, the
6responses of the respondent to any of the inquiries detailed
7in this Section, the opinion of the guardian ad litem or other
8professionals with whom the guardian ad litem consulted
9concerning the appropriateness of guardianship, and any other
10material issue discovered by the guardian ad litem, including
11whether a supported decision-making agreement would be an
12appropriate alternative to guardianship. The guardian ad litem
13shall appear at the hearing and testify as to any issues
14presented in his or her report.
15    (b) The court (1) may appoint counsel for the respondent,
16if the court finds that the interests of the respondent will be
17best served by the appointment, and (2) shall appoint counsel
18upon the respondent's request or if the respondent takes a
19position adverse to that of the guardian ad litem. The
20respondent shall be permitted to obtain the appointment of
21counsel either at the hearing or by any written or oral request
22communicated to the court prior to the hearing. The summons
23shall inform the respondent of this right to obtain appointed
24counsel. The court may allow counsel for the respondent
25reasonable compensation.
26    (c) The allocation of guardian ad litem fees and costs is



SB2663- 5 -LRB103 36137 LNS 66228 b

1within the discretion of the court. No legal fees, appointed
2counsel fees, guardian ad litem fees, or costs shall be
3assessed against the Office of the State Guardian, the public
4guardian, an adult protective services agency, the Department
5of Children and Family Services, or the agency designated by
6the Governor under Section 1 of the Protection and Advocacy
7for Persons with Developmental Disabilities Act.
8    (d) The hearing may be held at such convenient place as the
9court directs, including at a facility in which the respondent
11    (e) Unless he is the petitioner, the respondent shall be
12personally served with a copy of the petition and a summons not
13less than 14 days before the hearing. The summons shall be
14printed in large, bold type and shall include the following:
16    You have been named as a respondent in a guardianship
17petition asking that you be declared a person with a
18disability. If the court grants the petition, a guardian will
19be appointed for you. A copy of the guardianship petition is
20attached for your convenience.
21The date and time of the hearing are:
22The place where the hearing will occur is:
23The Judge's name and phone number is:
24    If a guardian is appointed for you, the guardian may be
25given the right to make all important personal decisions for
26you, such as where you may live, what medical treatment you may



SB2663- 6 -LRB103 36137 LNS 66228 b

1receive, what places you may visit, and who may visit you. A
2guardian may also be given the right to control and manage your
3money and other property, including your home, if you own one.
4You may lose the right to make these decisions for yourself.
5    You have the following legal rights:
6        (1) You have the right to be present at the court
7    hearing.
8        (2) You have the right to be represented by a lawyer,
9    either one that you retain, or one appointed by the Judge.
10        (3) You have the right to ask for a jury of six persons
11    to hear your case.
12        (4) You have the right to present evidence to the
13    court and to confront and cross-examine witnesses.
14        (5) You have the right to ask the Judge to appoint an
15    independent expert to examine you and give an opinion
16    about your need for a guardian.
17        (6) You have the right to ask that the court hearing be
18    closed to the public.
19        (7) You have the right to tell the court whom you
20    prefer to have for your guardian.
21        (8) You have the right to ask a judge to find that
22    although you lack some capacity to make your own
23    decisions, you can make other decisions, and therefore it
24    is best for the court to appoint only a limited guardian
25    for you.
26    You do not have to attend the court hearing if you do not



SB2663- 7 -LRB103 36137 LNS 66228 b

1want to be there. If you do not attend, the Judge may appoint a
2guardian if the Judge finds that a guardian would be of benefit
3to you. The hearing will not be postponed or canceled if you do
4not attend. If you are unable to attend the hearing in person
5or you will suffer harm if you attend, the Judge can decide to
6hold the hearing at a place that is convenient. The Judge can
7also follow the rule of the Supreme Court of this State, or its
8local equivalent, and decide if a video conference is
16    Service of summons and the petition may be made by a
17private person 18 years of age or over who is not a party to
18the action.
20    (f) Notice of the time and place of the hearing shall be
21given by the petitioner by mail or in person to those persons,
22including the proposed guardian, whose names and addresses
23appear in the petition and who do not waive notice, not less
24than 14 days before the hearing.
25(Source: P.A. 102-72, eff. 1-1-22; 102-191, eff. 1-1-22;
26102-813, eff. 5-13-22.)



SB2663- 8 -LRB103 36137 LNS 66228 b

1    (755 ILCS 5/11a-19)  (from Ch. 110 1/2, par. 11a-19)
2    Sec. 11a-19. Notice of right to seek modification. At the
3time of the appointment of a guardian the court shall inform
4the ward of his right under Section 11a-20 to petition for
5termination of adjudication of disability, revocation of the
6letters of guardianship of the estate or person, or both, or
7modification of the duties of the guardian, or termination of
8an adjudication of disability using a supported
9decision-making agreement under the Supported Decision-Making
10Agreement Act and shall give the ward a written statement
11explaining this right and the procedures for petitioning the
12court. The notice shall be in large type and shall be in a
13format substantially similar to the following:
16IN RE THE ESTATE OF             
18.....................,          )   CASE NO. .... 
19a Person with a Disability,     

21    [Insert name] was appointed your Guardian of the Person on
22[insert date].
23    [Insert name] was appointed your Guardian of the Estate on



SB2663- 9 -LRB103 36137 LNS 66228 b

1[insert date].
2    You have the right to ask the court to dismiss this
3guardianship, to revoke the power of this guardian to act for
4you, or to modify the duties of any such guardian.
5    You, or someone on your behalf, can make this request,
6even by an informal letter, a telephone call, or a visit to the
7court. You should send your letter to the court at the
8following address; [insert name of judge and mailing address
9of courthouse].
10    The court may appoint a Guardian ad Litem to investigate
11and report to the court. You have the right to have a lawyer
12appointed for you, to have a hearing before the court, to have
13a jury of six persons decide the facts, to present evidence and
14tell your story, and to ask witnesses any questions in
16    Entered of.............., 20.... 
17                                    .................
18                                            JUDGE
19[..]    At the time of the appointment of the Guardian in this
20cause, the court informed the ward of his or her rights under
21Section 11a-20 of the Illinois Probate Act and gave the ward,
22in open court, the above-written notice explaining these
23rights and procedures.



SB2663- 10 -LRB103 36137 LNS 66228 b

1[..]    The Clerk of the Circuit Court shall mail a copy of the
2above-written notice to the above-named person with a
3disability at the residence address set forth in the petition
4filed herein.
5Copy Mailed:.................................................
6                            ................................ 
7                                Clerk of the Circuit Court
9(Source: P.A. 102-72, eff. 1-1-22.)
10    Section 10. The Supported Decision-Making Agreement Act is
11amended by changing Sections 5, 10, 45, and 50 as follows:
12    (755 ILCS 9/5)
13    Sec. 5. Purpose; interpretation. The purpose of this Act
14is to recognize a less-restrictive alternative to guardianship
15for adults with intellectual and developmental disabilities
16who need assistance with decisions regarding daily living.
17    This Act shall be administered and interpreted in
18accordance with the following principles:
19        (1) All adults should be able to live in the manner
20    they choose and to accept or refuse support, assistance,



SB2663- 11 -LRB103 36137 LNS 66228 b

1    or protection as long as they do not harm others and are
2    capable of making decisions about those matters.
3        (2) All adults should be able to be informed about
4    and, to the best of their ability, participate in
5    decisions regarding daily living.
6        (3) All adults should receive the most effective yet
7    least restrictive and intrusive forms of support,
8    assistance, and protection when they are unable to care
9    for themselves or manage their affairs alone.
10        (4) The values, beliefs, wishes, cultural norms, and
11    traditions that the principal holds should be respected.
12(Source: P.A. 102-614, eff. 2-27-22.)
13    (755 ILCS 9/10)
14    Sec. 10. Definitions. As used in this Act:
15    "Adult" means a person who is at least 18 years of age.
16    "Everyday life decisions" means decisions that support
17one's existence, including, but not limited to, decisions
18regarding medical care and treatment, one's residence, work,
19finances, and social life.
20    "Principal" means an adult with intellectual or
21developmental disabilities who seeks to enter, or has entered,
22into a supported decision-making agreement with a supporter
23under this Act.
24    "Supported decision-making agreement" means an agreement
25between a principal and a supporter under this Act.



SB2663- 12 -LRB103 36137 LNS 66228 b

1    "Supporter" means an adult who has entered into a
2supported decision-making agreement with a principal under
3this Act.
4(Source: P.A. 102-614, eff. 2-27-22.)
5    (755 ILCS 9/45)
6    Sec. 45. Authorization and witnesses.
7    (a) A principal and his or her supporter entering into a
8supported decision-making agreement shall sign and date the
9agreement in the presence of 2 or more subscribing witnesses
10who are at least 18 years of age. The principal's supporter
11shall not serve as a witness to the supported support
12decision-making agreement.
13    (b) The principal may elect to nominate the supporter as
14the principal's health care surrogate and may act as the
15principal's health care surrogate when the standards set forth
16in the Health Care Surrogate Act have been met.
17(Source: P.A. 102-614, eff. 2-27-22.)
18    (755 ILCS 9/50)
19    Sec. 50. Agreement instrument. A supported decision-making
20agreement is valid if it substantially follows the following

Important Information for the Supporter: Duties




SB2663- 13 -LRB103 36137 LNS 66228 b

1    If you agree to provide support to the principal, you have
2a duty to:
3        (1) act in good faith;
4        (2) act within the authority granted in this
5    agreement;
6        (3) act loyally and without self-interest; and
7        (4) avoid conflicts of interest.
Appointment of Supporter

9    I, (insert principal's name), make this agreement of my
10own free will.
11    I agree and designate that the following individual is my
13    Name: ...............................................
14    Address: ............................................
15    Phone Number: .......................................
16    Email Address: ..........................................
17    (Yes/No) I name my supporter to act as my health care
18surrogate in the event I am determined, according to the terms
19of the Health Care Surrogate Act, to be unable to make my own
20medical decisions.



SB2663- 14 -LRB103 36137 LNS 66228 b

1    My supporter is to help me make decisions for myself and
2may help me with making everyday life decisions relating to
3the following:
4    (Yes/No)   obtaining food, clothing, and shelter.
5    (Yes/No)   taking care of my physical and emotional
7    (Yes/No)   managing my financial affairs.
8    (Yes/No)   applying for public benefits.
9    (Yes/No)   helping me find work.
10    (Yes/No)   assisting with residential services.
11    (Yes/No)   helping me with school.
12    (Yes/No)   helping me advocate for myself.
13    My supporter is not allowed to make decisions for me. To
14help me with my decisions, my supporter may:
15        (1) help me access, collect, or obtain information
16    that is relevant to a decision, including medical,
17    psychological, financial, educational, housing, and
18    treatment records;
19        (2) help me understand my options so that I can make an
20    informed decision; and
21        (3) help me communicate my decision to appropriate
22    persons.
23    I want my supporter to have:
24        (Yes/No)  A release allowing my supporter to see



SB2663- 15 -LRB103 36137 LNS 66228 b

1    protected health information under the Health Insurance
2    Portability and Accountability Act of 1996 is attached.
3        (Yes/No)  A release allowing my supporter to see
4    confidential information under the Mental Health and
5    Developmental Disabilities Confidentiality Act is
6    attached.
7        (Yes/No)  A release allowing my supporter to see
8    educational records under the Family Educational Rights
9    and Privacy Act of 1974 and the Illinois School Records
10    Act is attached.
11        (Yes/No)  A release allowing my supporter to see
12    substance abuse records under Confidentiality of Alcohol
13    and Drug Abuse Patient Records regulations is attached.
14    This supported decision-making agreement is effective
15immediately and will continue until (insert date) or until the
16agreement is terminated by my supporter or me or by operation
17of law.
18    Signed this .... day of ........, 20....
19    (Signature of Principal)   (Printed name of principal)
Consent of Supporter

21    I, (name of supporter), consent to act as a supporter
22under this agreement.



SB2663- 16 -LRB103 36137 LNS 66228 b

1    (Signature of supporter)  (Printed name of supporter)
2    (Witness 1 signature)      (Printed name of witness 1)
3    (Witness 2 signature)      (Printed name of witness 2)

10PROTECTIVE SERVICES HOTLINE: 1-866-800-1409, 1-888-206-1327
12     This form is not intended to exclude other forms or
13agreements that identify the principal, supporter, and types
14of supports.
15(Source: P.A. 102-614, eff. 2-27-22.)
16    Section 15. The Health Care Surrogate Act is amended by
17changing Section 25 as follows:
18    (755 ILCS 40/25)  (from Ch. 110 1/2, par. 851-25)
19    Sec. 25. Surrogate decision making.
20    (a) When a patient lacks decisional capacity, the health



SB2663- 17 -LRB103 36137 LNS 66228 b

1care provider must make a reasonable inquiry as to the
2availability and authority of a health care agent under the
3Powers of Attorney for Health Care Law. When no health care
4agent is authorized and available, the health care provider
5must make a reasonable inquiry as to the availability of
6possible surrogates listed in items (1) through (4) of this
7subsection. For purposes of this Section, a reasonable inquiry
8includes, but is not limited to, identifying a member of the
9patient's family or other health care agent by examining the
10patient's personal effects or medical records. If a family
11member or other health care agent is identified, an attempt to
12contact that person by telephone must be made within 24 hours
13after a determination by the provider that the patient lacks
14decisional capacity. No person shall be liable for civil
15damages or subject to professional discipline based on a claim
16of violating a patient's right to confidentiality as a result
17of making a reasonable inquiry as to the availability of a
18patient's family member or health care agent, except for
19willful or wanton misconduct.
20    The surrogate decision makers, as identified by the
21attending physician, are then authorized to make decisions as
22follows: (i) for patients who lack decisional capacity and do
23not have a qualifying condition, medical treatment decisions
24may be made in accordance with subsection (b-5) of Section 20;
25and (ii) for patients who lack decisional capacity and have a
26qualifying condition, medical treatment decisions including



SB2663- 18 -LRB103 36137 LNS 66228 b

1whether to forgo life-sustaining treatment on behalf of the
2patient may be made without court order or judicial
3involvement in the following order of priority:
4        (1) the patient's guardian of the person;
5        (1.5) the supporter when designated by the patient in
6    a supported decision-making agreement under the Supported
7    Decision-Making Agreement Act;
8        (2) the patient's spouse;
9        (3) any adult son or daughter of the patient;
10        (4) either parent of the patient;
11        (5) any adult brother or sister of the patient;
12        (6) any adult grandchild of the patient;
13        (7) a close friend of the patient;
14        (8) the patient's guardian of the estate;
15        (9) the patient's temporary custodian appointed under
16    subsection (2) of Section 2-10 of the Juvenile Court Act
17    of 1987 if the court has entered an order granting such
18    authority pursuant to subsection (12) of Section 2-10 of
19    the Juvenile Court Act of 1987.
20    The health care provider shall have the right to rely on
21any of the above surrogates if the provider believes after
22reasonable inquiry that neither a health care agent under the
23Powers of Attorney for Health Care Law nor a surrogate of
24higher priority is available.
25    Where there are multiple surrogate decision makers at the
26same priority level in the hierarchy, it shall be the



SB2663- 19 -LRB103 36137 LNS 66228 b

1responsibility of those surrogates to make reasonable efforts
2to reach a consensus as to their decision on behalf of the
3patient regarding the forgoing of life-sustaining treatment.
4If 2 or more surrogates who are in the same category and have
5equal priority indicate to the attending physician that they
6disagree about the health care matter at issue, a majority of
7the available persons in that category (or the parent with
8custodial rights) shall control, unless the minority (or the
9parent without custodial rights) initiates guardianship
10proceedings in accordance with the Probate Act of 1975. No
11health care provider or other person is required to seek
12appointment of a guardian.
13    (b) After a surrogate has been identified, the name,
14address, telephone number, and relationship of that person to
15the patient shall be recorded in the patient's medical record.
16    (c) Any surrogate who becomes unavailable for any reason
17may be replaced by applying the provisions of Section 25 in the
18same manner as for the initial choice of surrogate.
19    (d) In the event an individual of a higher priority to an
20identified surrogate becomes available and willing to be the
21surrogate, the individual with higher priority may be
22identified as the surrogate. In the event an individual in a
23higher, a lower, or the same priority level or a health care
24provider seeks to challenge the priority of or the
25life-sustaining treatment decision of the recognized surrogate
26decision maker, the challenging party may initiate



SB2663- 20 -LRB103 36137 LNS 66228 b

1guardianship proceedings in accordance with the Probate Act of
3    (e) The surrogate decision maker shall have the same right
4as the patient to receive medical information and medical
5records and to consent to disclosure.
6    (f) Any surrogate shall have the authority to make
7decisions for the patient until removed by the patient who no
8longer lacks decisional capacity, appointment of a guardian of
9the person, or the patient's death.
10(Source: P.A. 100-959, eff. 1-1-19.)