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Illinois General Assembly· HB 5365Governor Approved

DISABILITY-DECISION MAKING, the official text

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HB5365 Enrolled                     LRB104 18224 JRC 31663 b

1   AN ACT concerning civil law.

2   Be it enacted by the People of the State of Illinois,

3 represented in the General Assembly:

4   Section 5. The Supported Decision-Making Agreement Act is

5 amended by changing Sections 5, 10, 15, 30, 50, and 70 as

6 follows:

7   (755 ILCS 9/5)

8   Sec. 5. Purpose; interpretation. The purpose of this Act

9 is to protect vulnerable adults from exploitation by

10 recognizing recognize a less-restrictive alternative to

11 guardianship for adults with intellectual and developmental

12 disabilities who need support making assistance with decisions

13 regarding daily living and who, with proper support, retain

14 the capacity to make those decisions. Supported

15 decision-making is intended to provide individuals a way to

16 maintain autonomy and decision-making authority over their own

17 lives by developing and maintaining voluntary supports to

18 assist them in understanding, making, communicating, and

19 implementing their own informed choices.

20  This Act shall be administered and interpreted in

21 accordance with the following principles:

22  (1) All adults, including adults with disabilities and

23  older adults, are presumed competent and to have the
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1   capacity to make decisions regarding their day-to-day

2   health, safety, welfare, and social and financial affairs,

3   should be able to live in the manner they choose and to

4   accept or refuse support, assistance, or protection unless

5   otherwise determined through legal proceedings as long as

6   they do not harm others and are capable of making

7   decisions about those matters.

8   (2) All adults should be able to be informed about

9   and, to the best of their ability and with the supports

10  they choose, participate in decisions regarding daily

11  living and managing their affairs.

12  (3) Adults use a wide range of voluntary supports to

13  help them understand, make, and communicate their own

14  decisions. These voluntary arrangements should be

15  encouraged and recognized as a valid way for people to

16  strengthen their capacity and maintain their autonomy.

17  (4) All adults should receive the most effective yet

18  least restrictive and intrusive forms of support,

19  assistance, and protection when they are unable to care

20  for themselves or manage their affairs alone.

21  (5) (4) The values, beliefs, wishes, cultural norms,

22  and traditions that the principal holds should be

23  respected.

24  (6) To safeguard vulnerable persons from exploitation,

25  a supported decision-making agreement:

26  (A) must include the specific areas for which the
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1   supporter requests support;

2   (B) should be reviewed every 2 years;

3   (C) must include information about how to report

4   abuse, neglect, or exploitation of an adult with

5   disabilities;

6   (D) must allow an interested person to seek

7   suspension or revocation of a supported

8   decision-making agreement;

9   (E) must require a supporter to attest that the

10  supporter must complete training and is eligible to

11  serve as a supporter;

12  (F) is automatically terminated if a supporter

13  becomes disqualified;

14  (G) must contain the names and signatures of 2

15  witnesses; and

16  (H) must include a statement that the supporter is

17  not authorized to make a decision for the principal.

18  (7) Under a supported decision-making agreement:

19  (A) the principal makes the decisions and retains

20  all personal rights and autonomy;

21  (B) the principal chooses trusted individuals to

22  support them; and

23  (C) supporters advise the principal, provide

24  information, and help them understand the implications

25  of different choices, but they do not make the

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

2   (755 ILCS 9/10)

3   Sec. 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

6 one's existence, including, but not limited to, decisions

7 regarding medical care and treatment, one's residence, work,

8 finances, and social life.

9   "Interested person" means the principal's spouse, parent,

10 or adult child; a governmental agency having regulatory

11 authority to protect the welfare of the principal; a service

12 provider as defined in the Guardianship and Advocacy Act; and

13 the principal's caregiver or another person who demonstrates

14 sufficient interest in the principal's welfare.

15  "Principal" means an adult who is not under plenary

16 guardianship and has not otherwise been declared by a

17 physician to lack decisional capacity and with intellectual or

18 developmental disabilities who seeks to enter, or has entered,

19 into a supported decision-making agreement with a supporter

20 under this Act.

21  "Supported decision-making" means a process of supporting

22 and accommodating a principal to assist the principal in

23 making life decisions under a supported decision-making

24 agreement.

25  "Supported decision-making agreement" means an agreement
    HB5365 Enrolled  -5-                  LRB104 18224 JRC 31663 b

1 between a principal and a supporter under this Act that

2 identifies the life decisions that can be supported, which may

3 include, but are not limited to, decisions related to where

4 the principal wants to live, with whom the principal wants to

5 live, where the principal wants to work, and the services,

6 supports, or medical care the principal wants to receive

7 without impeding the self-determination of the principal.

8   "Supporter" means an adult who has entered into a

9 supported decision-making agreement with a principal under

10 this Act.

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

12  (755 ILCS 9/15)

13  Sec. 15. Presumption of capability.

14  (a) All adults are presumed to be capable of making

15 decisions regarding daily living and to have capacity unless

16 otherwise determined by a court. A diagnosis of mental

17 illness, intellectual disability, or developmental disability,

18 of itself, does not void the presumption of capacity.

19  (b) The manner in which an adult communicates with others

20 is not grounds for deciding that the adult is incapable of

21 managing the affairs of the adult.

22  (c) The execution of a supported decision-making agreement

23 may not be used as evidence of capacity or incapacity in any

24 civil or criminal proceeding; however, the existence of such

25 an agreement may be entered into evidence. The execution of a
    HB5365 Enrolled  -6-        LRB104 18224 JRC 31663 b

1 supported decision-making agreement and does not preclude the
2 ability of the adult who has entered into a supported
3 decision-making agreement to act independently of the
4 agreement.
5 (Source: P.A. 102-614, eff. 2-27-22.)

6   (755 ILCS 9/30)

7   Sec. 30. Supporter duties.

8   (a) Except as otherwise provided by a supported

9 decision-making agreement, a supporter may:

10  (1) Assist the principal in understanding information,

11  options, responsibilities, and consequences of the life

12  decisions of the principal, including those decisions

13  related to the affairs or support services of the

14  principal.

15  (2) Help the principal access, obtain, and understand

16  any information that is relevant to any given life

17  decision, including a medical, psychological, financial,

18  or educational decision, or any treatment records or

19  records necessary to manage the affairs or support

20  services of the principal.

21  (3) Assist the principal in finding, obtaining, making

22  appointments for, and implementing the support services or

23  plans for support services of the principal.

24  (4) Help the principal monitor information about the

25  affairs or support services of the principal, including
    HB5365 Enrolled             -7-       LRB104 18224 JRC 31663 b

1   keeping track of future necessary or recommended services.

2   (5) Ascertain the wishes and decisions of the

3   principal in order to advocate that the wishes and

4   decisions of an individual with disabilities are

5   implemented.

6   (b) A supporter shall act with the care, competence, and

7 diligence ordinarily exercised by an individual in a similar

8 circumstance, with due regard to the possession of, or lack

9 of, special skills or expertise.

10  (c) A supporter shall complete the seek training developed

11 by the Guardianship and Advocacy Commission and education

12 regarding the responsibilities and limitations of the

13 supporter role within 45 days of signing the consent to act as

14 a supporter. The Guardianship and Advocacy Commission shall

15 provide public information about this Act and the supporter

16 role, responsibilities, and limitations.

17  The Guardianship and Advocacy Commission shall develop

18 training and education materials for both principals and

19 supporters, including, but not limited to, sample agreements

20 that will be posted on the website of the Commission along with

21 public awareness materials.

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

23  (755 ILCS 9/50)

24  Sec. 50. Agreement instrument.

25  (a) A supported decision-making agreement must be written
    HB5365 Enrolled          -8-           LRB104 18224 JRC 31663 b

1 in plain language and include the following:

2   (1) a list of the areas in which both the principal

3   requests support and the supporter agrees to provide

4   support;

5   (2) the supporter's agreement that the supporter is

6   not disqualified from acting under Section 20 of this Act;

7   (3) the supporter's agreement that the supporter will

8   complete the training required by subsection (c) of

9   Section 30 of this Act;

10  (4) a statement that a supporter is not authorized to

11  make a decision for the principal; and

12  (5) information about how to report suspicion that an

13  adult with a disability is being abused, neglected, or

14  exploited by the supporter.

15  (b) A supported decision-making agreement must be signed

16 by the principal and each supporter. The principal may use

17 reasonable modifications, such as assistive technology or

18 physical assistance, to sign the agreement.

19  (c) A supported decision-making agreement should be

20 reviewed by the principal and all supporters every 2 years and

21 updated, as needed, in the same manner as an initial supported

22 decision-making agreement is executed.

23  (d) A supported decision-making agreement is valid if it

24 substantially follows the following form:

25            "SUPPORTED DECISION-MAKING AGREEMENT
    HB5365 Enrolled  -9-    LRB104 18224 JRC 31663 b

1   Important Information for the Supporter: Duties

2   If you agree to provide support to the principal, you have

3 a duty to:

4   (1) act in good faith;

5   (2) act within the authority granted in this

6   agreement;

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

8   (4) avoid conflicts of interest; and .

9   (5) complete the training required in Section 30 of

10  the Supported Decision-Making Agreement Act.

11                   Appointment of Supporter

12  I, (insert principal's name), make this agreement of my

13 own free will.

14  I agree and designate that the following individual is my

15 supporter:

16  Name: ....................................................

17  Address: ................................................

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

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

20  My supporter is to help me make decisions for myself and

21 may help me with making everyday life decisions relating to
    HB5365 Enrolled         - 10 - LRB104 18224 JRC 31663 b

1 the following:

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

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

4 health.

5   (Yes/No) managing my financial affairs.

6   (Yes/No) applying for public benefits.

7   (Yes/No) helping me find work.

8   (Yes/No) assisting with residential services.

9   (Yes/No) helping me with school.

10  (Yes/No) helping me advocate for myself.

11  My supporter is not allowed to make decisions for me. To

12 help me with my decisions, my supporter may:

13         (1) help me access, collect, or obtain information

14  that is relevant to a decision, including medical,

15  psychological, financial, educational, housing, and

16  treatment records;

17         (2) help me understand my options so that I can make an

18  informed decision; and

19         (3) help me communicate my decision to appropriate

20  persons.

21  I want my supporter to have:

22         (Yes/No) A release allowing my supporter to see

23  protected health information under the Health Insurance

24  Portability and Accountability Act of 1996 is attached.
    HB5365 Enrolled       - 11 - LRB104 18224 JRC 31663 b

1           (Yes/No) A release allowing my supporter to see

2   confidential information under the Mental Health and

3   Developmental Disabilities Confidentiality Act is

4   attached.

5           (Yes/No) A release allowing my supporter to see

6   educational records under the Family Educational Rights

7   and Privacy Act of 1974 and the Illinois School Records

8   Act is attached.

9           (Yes/No) A release allowing my supporter to see

10  substance abuse records under Confidentiality of Alcohol

11  and Drug Abuse Patient Records regulations is attached.

12  This supported decision-making agreement is effective

13 immediately and will continue until (insert date) or until the

14 agreement is terminated by my supporter or me or by operation

15 of law.

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

17  (Signature of Principal) (Printed name of principal)

18                        Consent of Supporter

19  I, (name of supporter), consent to act as a supporter

20 under this agreement.

21  (Signature of supporter) (Printed name of supporter)
    HB5365 Enrolled            - 12 - LRB104 18224 JRC 31663 b

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

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

3       WARNING: PROTECTION FOR THE ADULT WITH A DISABILITY

 4 IF A PERSON WHO RECEIVES A COPY OF THIS AGREEMENT OR IS AWARE
 5 OF THE EXISTENCE OF THIS AGREEMENT HAS CAUSE TO BELIEVE THAT
 6 THE ADULT WITH A DISABILITY IS BEING ABUSED, NEGLECTED, OR
 7 EXPLOITED BY THE SUPPORTER, THE PERSON SHALL REPORT THE
 8 ALLEGED ABUSE, NEGLECT, OR EXPLOITATION TO THE ADULT
 9 PROTECTIVE SERVICES HOTLINE: 1-866-800-1409, 1-888-206-1327
10 (TTY)."

11      This form is not intended to exclude other forms or

12 agreements that identify the principal, supporter, and types

13 of supports.

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

15      (755 ILCS 9/70)

16      Sec. 70. Term of agreement; revocation.

17      (a) A supported decision-making agreement extends until

18 terminated by either party or by the terms of the agreement.

19      (b) A supported decision-making agreement is terminated

20 if:

21      (1) the Office of Inspector General or Adult

22      Protective Services substantiated an allegation of abuse
    HB5365 Enrolled         - 13 - LRB104 18224 JRC 31663 b

1   or neglect by the supporter; or

2          (2) there is a restraining order against the supporter

3   by or on behalf of the principal;.

4          (3) all supporters become disqualified from acting as

5   a supporter under Section 20 of this Act;

6          (4) the principal revokes the agreement;

7          (5) the supporter resigns; or

8          (6) the agreement includes a termination date.

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

10 while:

11         (1) the conditions of Section 15 of the Health Care

12  Surrogate Act are met;

13         (2) a medical or psychological evaluation has

14  concluded the principal lacks decisional capacity but a

15  subsequent evaluation has not yet found the principal's

16  decisional capacity restored; or

17         (3) the agency established in a durable power of

18  attorney has begun but not yet terminated.

19  (c) A principal may revoke his or her supported

20 decision-making agreement and invalidate the supported

21 decision-making agreement at any time by:

22         (1) canceling or destroying the supported

23  decision-making agreement or directing another in the

24  presence of the principal to destroy the decision-making

25  agreement;

26         (2) executing a statement, in writing, that is signed
    HB5365 Enrolled           - 14 - LRB104 18224 JRC 31663 b

1   and dated by the principal, expressing his or her intent

2   to revoke the supported decision-making agreement; or

3   (3) verbally expressing the intent of the principal to

4   revoke the supported decision-making agreement in the

5   presence of 2 witnesses.

6   (d) Unless the supported decision-making agreement

7 provides a different method for the resignation of the

8 supporter support, a supporter may resign by giving written

9 notice to the principal.

10  (d-5) A supporter must give written notice to the

11 principal if the supporter becomes disqualified from acting as

12 a supporter under Section 20 of this Act.

13  (e) The last signed agreement holds.

14  (f) Upon the filing of a petition by an interested person,

15 a court may suspend or terminate a supported decision-making

16 agreement if necessary to ensure the well-being and safety of

17 the principal. Proceedings under this subsection may be

18 commenced in the county where the principal resides.

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