HB 5365

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Full Text of HB5365
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	HB5365 - 104th General Assembly
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			House Amendment 001
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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,
3represented in the General Assembly:
4    Section 5. The Supported Decision-Making Agreement Act is
5amended by changing Sections 5, 10, 15, 30, 50, and 70 as
6follows:
7    (755 ILCS 9/5)
8    Sec. 5. Purpose; interpretation. The purpose of this Act
9is to protect vulnerable adults from exploitation by 
10recognizing [recognize a less-restrictive alternative to ]
11[guardianship for] adults [with intellectual and developmental ]
12[disabilities] who need support making [assistance with] decisions
13regarding daily living and who, with proper support, retain 
14the capacity to make those decisions. Supported 
15decision-making is intended to provide individuals a way to 
16maintain autonomy and decision-making authority over their own 
17lives by developing and maintaining voluntary supports to 
18assist them in understanding, making, communicating, and 
19implementing their own informed choices.
20    This Act shall be administered and interpreted in
21accordance 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	- 3 -	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
6one's existence, including, but not limited to, decisions
7regarding medical care and treatment, one's residence, work,
8finances, and social life.
9    "Interested person" means the principal's spouse, parent, 
10or adult child; a governmental agency having regulatory 
11authority to protect the welfare of the principal; a service 
12provider as defined in the Guardianship and Advocacy Act; and 
13the principal's caregiver or another person who demonstrates 
14sufficient interest in the principal's welfare.
15    "Principal" means an adult who is not under plenary 
16guardianship and has not otherwise been declared by a 
17physician to lack decisional capacity and [with intellectual or ]
18[developmental disabilities] who seeks to enter, or has entered,
19into a supported decision-making agreement with a supporter
20under this Act.
21    "Supported decision-making" means a process of supporting 
22and accommodating a principal to assist the principal in 
23making life decisions under a supported decision-making 
24agreement.
25    "Supported decision-making agreement" means an agreement
		HB5365 Enrolled	- 5 -	LRB104 18224 JRC 31663 b
1between a principal and a supporter under this Act that 
2identifies the life decisions that can be supported, which may 
3include, but are not limited to, decisions related to where 
4the principal wants to live, with whom the principal wants to 
5live, where the principal wants to work, and the services, 
6supports, or medical care the principal wants to receive 
7without impeding the self-determination of the principal.
8    "Supporter" means an adult who has entered into a
9supported decision-making agreement with a principal under
10this 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
15decisions regarding daily living and to have capacity unless
16otherwise 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
20is not grounds for deciding that the adult is incapable of
21managing the affairs of the adult.
22    (c) The execution of a supported decision-making agreement
23may not be used as evidence of capacity or incapacity in any
24civil or criminal proceeding; however, the existence of such 
25an agreement may be entered into evidence. The execution of a 
		HB5365 Enrolled	- 6 -	LRB104 18224 JRC 31663 b
1supported decision-making agreement [and] does not preclude the
2ability of the adult who has entered into a supported
3decision-making agreement to act independently of the
4agreement.
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
9decision-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
7diligence ordinarily exercised by an individual in a similar
8circumstance, with due regard to the possession of, or lack
9of, special skills or expertise.
10    (c) A supporter shall complete the [seek] training developed 
11by the Guardianship and Advocacy Commission [and education]
12regarding the responsibilities and limitations of the
13supporter role within 45 days of signing the consent to act as 
14a supporter. 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(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
1in 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 
16by the principal and each supporter. The principal may use 
17reasonable modifications, such as assistive technology or 
18physical assistance, to sign the agreement.
19    (c) A supported decision-making agreement should be 
20reviewed by the principal and all supporters every 2 years and 
21updated, as needed, in the same manner as an initial supported 
22decision-making agreement is executed.
23    (d) A supported decision-making agreement is valid if it
24substantially follows the following form:
25"SUPPORTED DECISION-MAKING AGREEMENT
		HB5365 Enrolled	- 9 -	LRB104 18224 JRC 31663 b
1Important Information for the Supporter: Duties
2    If you agree to provide support to the principal, you have
3a 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.
11Appointment of Supporter
12    I, (insert principal's name), make this agreement of my
13own free will.
14    I agree and designate that the following individual is my
15supporter:
16    Name: ...............................................
17    Address: ............................................
18    Phone Number: .......................................
19    Email Address: ..........................................
20    My supporter is to help me make decisions for myself and
21may help me with making everyday life decisions relating to
		HB5365 Enrolled	- 10 -	LRB104 18224 JRC 31663 b
1the following:
2    (Yes/No)   obtaining food, clothing, and shelter.
3    (Yes/No)   taking care of my physical and emotional
4health.
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
12help 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
13immediately and will continue until (insert date) or until the
14agreement is terminated by my supporter or me or by operation
15of law.
16    Signed this .... day of ........, 20....
17    (Signature of Principal)   (Printed name of principal)
18Consent of Supporter
19    I, (name of supporter), consent to act as a supporter
20under 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)
3WARNING: PROTECTION FOR THE ADULT WITH A DISABILITY
4IF A PERSON WHO RECEIVES A COPY OF THIS AGREEMENT OR IS AWARE
5OF THE EXISTENCE OF THIS AGREEMENT HAS CAUSE TO BELIEVE THAT
6THE ADULT WITH A DISABILITY IS BEING ABUSED, NEGLECTED, OR
7EXPLOITED BY THE SUPPORTER, THE PERSON SHALL REPORT THE
8ALLEGED ABUSE, NEGLECT, OR EXPLOITATION TO THE ADULT
9PROTECTIVE SERVICES HOTLINE: 1-866-800-1409, 1-888-206-1327
10(TTY)."
11     This form is not intended to exclude other forms or
12agreements that identify the principal, supporter, and types
13of 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
18terminated [by either party or by the terms of the agreement].
19    (b) A supported decision-making agreement is terminated
20if:
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 
10while:
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
20decision-making agreement and invalidate the supported
21decision-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
7provides a different method for the resignation of the
8supporter [support], a supporter may resign by giving written
9notice to the principal.
10    (d-5) A supporter must give written notice to the 
11principal if the supporter becomes disqualified from acting as 
12a 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, 
15a court may suspend or terminate a supported decision-making 
16agreement if necessary to ensure the well-being and safety of 
17the principal. Proceedings under this subsection may be 
18commenced in the county where the principal resides.
19(Source: P.A. 102-614, eff. 2-27-22.)