DISABILITY-DECISION MAKING

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HB5365 - 104th General Assembly

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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

HB5365 Enrolled
- 2 -
LRB104 18224 JRC 31663 b
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

HB5365 Enrolled
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LRB104 18224 JRC 31663 b
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.

HB5365 Enrolled
- 4 -
LRB104 18224 JRC 31663 b
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
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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
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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
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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
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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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