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

HB3849 102ND GENERAL ASSEMBLY

  
  

 


 
102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
HB3849

 

Introduced 2/22/2021, by Rep. Lindsey LaPointe

 

SYNOPSIS AS INTRODUCED:
 
New Act

    Creates the Supported Decision-Making Agreement Act. Authorizes the creation of supported decision-making agreements and allows a supporter to assist a principal with an intellectual or developmental disability in accessing, collecting, or obtaining information that is relevant to a decision authorized under the supported decision-making agreement. Provides that all adults are presumed to be capable of making decisions regarding daily living and to have capacity unless otherwise determined by a court. Provides that certain persons are disqualified from acting as a supporter. Provides that a supporter may exercise the authority granted to the supporter in the supported decision-making agreement. Provides for the duties of a supporter in a supported decision-making agreement. Prohibits a supporter from doing certain actions in relation to the principal. Requires 2 or more witnesses to be present and sign and date a supported decision-making agreement. Provides a form for a supported decision-making agreement. Provides that a person is not subject to criminal or civil liability and has not engaged in professional misconduct for an act or omission under certain circumstances. Provides that a decision or request made or communicated with the assistance of a supporter shall be recognized as the decision or request of the principal and may be enforced by the principal or supporter on the same basis as a decision or request of the principal. Provides that if a person who receives a copy or is aware of the existence of a supported decision-making agreement and has cause to believe that the principal is being abused, neglected, or exploited by the supporter, the person shall report the alleged abuse, neglect, or exploitation. Provides that any interested party with a reasonable basis to believe that the supporter is abusing or neglecting the principal shall have the right to petition for the appointment of a limited temporary guardian and a guardian ad litem for the purpose of determining if the support decision-making agreement should be terminated. Provides for the termination of a supported decision-making agreement. Provides that a principal may revoke the supported decision-making agreement and invalidate the supported decision-making agreement at any time. Provides that a supporter may resign by giving notice to the principal. Effective immediately.


LRB102 12658 LNS 17997 b

 

 

A BILL FOR

 

HB3849LRB102 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.

 

 

HB3849- 2 -LRB102 12658 LNS 17997 b

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

 

 

HB3849- 3 -LRB102 12658 LNS 17997 b

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 against whom there has been a finding of
19    abuse, neglect, or exploitation of the principal, a child,
20    an elderly individual, or a person with a disability;
21        (5) a person against whom the principal has obtained
22    an order of protection or an individual who is the subject
23    of a civil or criminal order prohibiting contact with the
24    principal; and
25        (6) a person who has been convicted of:

 

 

HB3849- 4 -LRB102 12658 LNS 17997 b

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

 

 

HB3849- 5 -LRB102 12658 LNS 17997 b

1    appointments for, and implementing the support services or
2    plans for support services of the principal.
3        (4) Help the principal monitor information about the
4    affairs or support services of the principal, including
5    keeping track of future necessary or recommended services.
6        (5) Ascertain the wishes and decisions of the
7    principal, assist in communicating those wishes and
8    decisions to other persons, and advocate to ensure that
9    the wishes and decisions of the principal are implemented.
10    (b) A supporter shall act with the care, competence, and
11diligence ordinarily exercised by an individual in a similar
12circumstance, with due regard to the possession of, or lack
13of, special skills or expertise.
14    (c) A supporter shall seek education regarding the
15responsibilities and limitations of the supporter role. The
16Guardianship and Advocacy Commission shall provide public
17information about this Act and the supporter role,
18responsibilities, and limitations.
 
19    Section 35. Supporter prohibitions. A supporter is
20prohibited from:
21        (1) Exerting undue influence upon, or making decisions
22    on behalf of, the principal.
23        (2) Obtaining, without the consent of the principal,
24    information that is not reasonably related to matters with
25    which the supporter is authorized to assist under the

 

 

HB3849- 6 -LRB102 12658 LNS 17997 b

1    supported decision-making agreement.
2        (3) Using, without the consent of the principal,
3    information acquired for a purpose other than assisting
4    the principal to make a decision under the supported
5    decision-making agreement.
6        (4) Receiving compensation for acting as a supporter,
7    except as otherwise provided by this Act.
 
8    Section 40. Access to personal information.
9    (a) A supporter is only authorized to assist the principal
10in accessing, collecting, or obtaining information that is
11relevant to a decision authorized under the supported
12decision-making agreement.
13    (b) If a supporter assists a principal in accessing,
14collecting, or obtaining personal information, including
15protected health information under the Health Insurance
16Portability and Accountability Act of 1996 or educational
17records under the Family Educational Rights and Privacy Act of
181974, the supporter shall ensure that the information is kept
19privileged and confidential, as applicable, and is not subject
20to unauthorized access, use, or disclosure.
21    (c) The existence of a supported decision-making agreement
22does not preclude a principal from seeking personal
23information without the assistance of the supporter.
 
24    Section 45. Authorization and witnesses. A principal and

 

 

HB3849- 7 -LRB102 12658 LNS 17997 b

1his or her supporter entering into a supported decision-making
2agreement shall sign and date the agreement in the presence of
32 or more subscribing witnesses who are at least 18 years of
4age. The principal's supporter shall not serve as a witness to
5the support decision-making agreement.
 
6    Section 50. Agreement instrument. A supported
7decision-making agreement is valid if it substantially follows
8the following form:
9
"SUPPORTED DECISION-MAKING AGREEMENT

 
10
Important Information for the Supporter: Duties

 
11    If you agree to provide support to the principal, you have
12a duty to:
13        (1) act in good faith;
14        (2) act within the authority granted in this
15    agreement;
16        (3) act loyally and without self-interest; and
17        (4) avoid conflicts of interest.
 
18
Appointment of Supporter

 
19    I, (insert principal's name), make this agreement of my
20own free will.
 

 

 

HB3849- 8 -LRB102 12658 LNS 17997 b

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

 

 

HB3849- 9 -LRB102 12658 LNS 17997 b

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

 

 

HB3849- 10 -LRB102 12658 LNS 17997 b

1    (Signature of Principal)   (Printed name of principal)
 
2
Consent of Supporter

 
3    I, (name of supporter), consent to act as a supporter
4under this agreement.
 
5    (Signature of supporter)  (Printed name of supporter)
6    (Witness 1 signature)      (Printed name of witness 1)
7    (Witness 2 signature)      (Printed name of witness 2)
 
8
WARNING: PROTECTION FOR THE ADULT WITH A DISABILITY

 
9IF A PERSON WHO RECEIVES A COPY OF THIS AGREEMENT OR IS AWARE
10OF THE EXISTENCE OF THIS AGREEMENT HAS CAUSE TO BELIEVE THAT
11THE ADULT WITH A DISABILITY IS BEING ABUSED, NEGLECTED, OR
12EXPLOITED BY THE SUPPORTER, THE PERSON SHALL REPORT THE
13ALLEGED ABUSE, NEGLECT, OR EXPLOITATION TO THE ADULT
14PROTECTIVE SERVICES HOTLINE: 1-866-800-1409, 1-888-206-1327
15(TTY)."
 
16     This form is not intended to exclude other forms or
17agreements that identify the principal, supporter, and types
18of supports.
 

 

 

HB3849- 11 -LRB102 12658 LNS 17997 b

1    Section 55. Reliance on agreement; limitation of
2liability.
3    (a) A person who receives the original or a copy of a
4supported decision-making agreement shall rely on the
5agreement.
6    (b) A person is not subject to criminal or civil liability
7and has not engaged in professional misconduct for an act or
8omission if the act or omission is done in good faith and in
9reliance on a supported decision-making agreement.
 
10    Section 60. Recognition of supporters. A decision or
11request made or communicated with the assistance of a
12supporter in conformity with this Act shall be recognized for
13the purposes of any provision of law as the decision or request
14of the principal and may be enforced by the principal or
15supporter in law or equity on the same basis as a decision or
16request of the principal.
 
17    Section 65. Reporting of suspected abuse, neglect, or
18exploitation. If a person who receives a copy of a supported
19decision-making agreement or is aware of the existence of a
20supported decision-making agreement and has cause to believe
21that the adult with a disability is being abused, neglected,
22or exploited by the supporter, the person shall report the
23alleged abuse, neglect, or exploitation to the Adult
24Protective Services Hotline: 1-866-800-1409, 1-888-206-1327

 

 

HB3849- 12 -LRB102 12658 LNS 17997 b

1(TTY).
 
2    Section 66. Third party right of action. Any interested
3party with a reasonable basis to believe that the supporter is
4abusing or neglecting the principal shall have the right to
5petition for the appointment of a limited temporary guardian
6and a guardian ad litem for the purpose of determining if the
7support decision-making agreement should be terminated.
 
8    Section 70. Term of agreement; revocation.
9    (a) A supported decision-making agreement extends until
10terminated by either party or by the terms of the agreement.
11    (b) A supported decision-making agreement is terminated
12if:
13        (1) the Office of Inspector General or Adult
14    Protective Services substantiated an allegation of abuse
15    or neglect by the supporter; or
16        (2) there is a restraining order against the supporter
17    by the principal.
18    (c) A principal may revoke his or her supported
19decision-making agreement and invalidate the supported
20decision-making agreement at any time by:
21        (1) canceling or destroying the supported
22    decision-making agreement or directing another in the
23    presence of the principal to destroy the decision-making
24    agreement;

 

 

HB3849- 13 -LRB102 12658 LNS 17997 b

1        (2) executing a statement, in writing, that is signed
2    and dated by the principal, expressing his or her intent
3    to revoke the supported decision-making agreement; or
4        (3) verbally expressing the intent of the principal to
5    revoke the supported decision-making agreement in the
6    presence of 2 witnesses.
7    (d) Unless the supported decision-making agreement
8provides a different method for the resignation of the
9support, a supporter may resign by giving notice to the
10principal.
11    (e) The last signed agreement holds.
 
12    Section 99. Effective date. This Act takes effect upon
13becoming law.