Full Text of HB3849 102nd General Assembly
HB3849enr 102ND GENERAL ASSEMBLY |
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| 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 1. Short title. This Act may be cited as the | 5 | | Supported Decision-Making Agreement Act. | 6 | | Section 5. Purpose; interpretation. The purpose of this | 7 | | Act is to recognize a less-restrictive alternative to | 8 | | guardianship for adults with intellectual and developmental | 9 | | disabilities who need assistance with decisions regarding | 10 | | daily living. | 11 | | This Act shall be administered and interpreted in | 12 | | accordance 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. |
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| 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 | 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 | | "Principal" means an adult with intellectual or | 10 | | developmental disabilities who seeks to enter, or has entered, | 11 | | into a supported decision-making agreement with a supporter | 12 | | under this Act. | 13 | | "Supported decision-making agreement" means an agreement | 14 | | between a principal and a supporter under this Act. | 15 | | "Supporter" means an adult who has entered into a | 16 | | supported decision-making agreement with a principal under | 17 | | this Act. | 18 | | Section 15. Presumption of capability. | 19 | | (a) All adults are presumed to be capable of making | 20 | | decisions regarding daily living and to have capacity unless | 21 | | otherwise determined by a court. A diagnosis of mental | 22 | | illness, intellectual disability, or developmental disability, | 23 | | of itself, does not void the presumption of capacity. | 24 | | (b) The manner in which an adult communicates with others |
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| 1 | | is not grounds for deciding that the adult is incapable of | 2 | | managing the affairs of the adult. | 3 | | (c) The execution of a supported decision-making agreement | 4 | | may not be used as evidence of capacity or incapacity in any | 5 | | civil or criminal proceeding and does not preclude the ability | 6 | | of the adult who has entered into a supported decision-making | 7 | | agreement to act independently of the agreement. | 8 | | Section 20. Supporter disqualifications. The following | 9 | | persons 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 who is listed on the Health Care Worker | 19 | | Registry maintained by the Illinois Department of Public | 20 | | Health as ineligible to work; | 21 | | (5) an individual who is the subject
of a civil or | 22 | | criminal order prohibiting contact with the
principal; and | 23 | | (6) a person who has been convicted of: | 24 | | (i) a sex offense; | 25 | | (ii) aggravated assault; |
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| 1 | | (iii) fraud; | 2 | | (iv) theft; | 3 | | (v) forgery; or | 4 | | (vi) extortion. | 5 | | Section 25. Authority of the supporter. A supporter may | 6 | | exercise the authority granted to the supporter in the | 7 | | supported decision-making agreement. | 8 | | Section 30. Supporter duties. | 9 | | (a) Except as otherwise provided by a supported | 10 | | decision-making agreement, a supporter may: | 11 | | (1) Assist the principal in understanding information, | 12 | | options, responsibilities, and consequences of the life | 13 | | decisions of the principal, including those decisions | 14 | | related to the affairs or support services of the | 15 | | principal. | 16 | | (2) Help the principal access, obtain, and understand | 17 | | any information that is relevant to any given life | 18 | | decision, including a medical, psychological, financial, | 19 | | or educational decision, or any treatment records or | 20 | | records necessary to manage the affairs or support | 21 | | services of the principal. | 22 | | (3) Assist the principal in finding, obtaining, making | 23 | | appointments for, and implementing the support services or | 24 | | plans for support services of the principal. |
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| 1 | | (4) Help the principal monitor information about the | 2 | | affairs or support services of the principal, including | 3 | | keeping track of future necessary or recommended services. | 4 | | (5) Ascertain the wishes and decisions of the
| 5 | | principal in order to advocate that the wishes and | 6 | | decisions of an individual with disabilities are | 7 | | implemented. | 8 | | (b) A supporter shall act with the care, competence, and | 9 | | diligence ordinarily exercised by an individual in a similar | 10 | | circumstance, with due regard to the possession of, or lack | 11 | | of, special skills or expertise. | 12 | | (c) A supporter shall seek training and education | 13 | | regarding the responsibilities and limitations of the | 14 | | supporter role. 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 | | Section 35. Supporter prohibitions. A supporter is | 23 | | prohibited from: | 24 | | (1) Exerting undue influence upon, or making decisions | 25 | | on behalf of, the principal. |
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| 1 | | (2) Obtaining, without the consent of the principal, | 2 | | information that is not reasonably related to matters with | 3 | | which the supporter is authorized to assist under the | 4 | | supported decision-making agreement. | 5 | | (3) Using, without the consent of the principal, | 6 | | information acquired for a purpose other than assisting | 7 | | the principal to make a decision under the supported | 8 | | decision-making agreement. | 9 | | (4) Receiving compensation for acting as a supporter, | 10 | | except as otherwise provided by this Act. | 11 | | Section 40. Access to personal information. | 12 | | (a) A supporter is only authorized to assist the principal | 13 | | in accessing, collecting, or obtaining information that is | 14 | | relevant to a decision authorized under the supported | 15 | | decision-making agreement. | 16 | | (b) If a supporter assists a principal in accessing, | 17 | | collecting, or obtaining personal information, including | 18 | | protected health information under the Health Insurance | 19 | | Portability and Accountability Act of 1996 or educational | 20 | | records under the Family Educational Rights and Privacy Act of | 21 | | 1974, the supporter shall ensure that the information is kept | 22 | | privileged and confidential, as applicable, and is not subject | 23 | | to unauthorized access, use, or disclosure. | 24 | | (c) The existence of a supported decision-making agreement | 25 | | does not preclude a principal from seeking personal |
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| 1 | | information without the assistance of the supporter. | 2 | | Section 45. Authorization and witnesses. A principal and | 3 | | his or her supporter entering into a supported decision-making | 4 | | agreement shall sign and date the agreement in the presence of | 5 | | 2 or more subscribing witnesses who are at least 18 years of | 6 | | age. The principal's supporter shall not serve as a witness to | 7 | | the support decision-making agreement. | 8 | | Section 50. Agreement instrument. A supported | 9 | | decision-making agreement is valid if it substantially follows | 10 | | the following form: | 11 | | "SUPPORTED DECISION-MAKING AGREEMENT | 12 | | Important Information for the Supporter: Duties | 13 | | If you agree to provide support to the principal, you have | 14 | | a duty to: | 15 | | (1) act in good faith; | 16 | | (2) act within the authority granted in this | 17 | | agreement; | 18 | | (3) act loyally and without self-interest; and | 19 | | (4) avoid conflicts of interest. | 20 | | Appointment of Supporter |
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| 1 | | I, (insert principal's name), make this agreement of my | 2 | | own free will. | 3 | | I agree and designate that the following individual is my | 4 | | supporter: | 5 | | Name: ............................................... | 6 | | Address: ............................................ | 7 | | Phone Number: ....................................... | 8 | | Email Address: .......................................... | 9 | | My supporter is to help me make decisions for myself and | 10 | | may help me with making everyday life decisions relating to | 11 | | the following: | 12 | | (Yes/No) obtaining food, clothing, and shelter. | 13 | | (Yes/No) taking care of my physical and emotional | 14 | | health. | 15 | | (Yes/No) managing my financial affairs. | 16 | | (Yes/No) applying for public benefits. | 17 | | (Yes/No) helping me find work. | 18 | | (Yes/No) assisting with residential services. | 19 | | (Yes/No) helping me with school. | 20 | | (Yes/No) helping me advocate for myself. | 21 | | My supporter is not allowed to make decisions for me. To | 22 | | help me with my decisions, my supporter may: | 23 | | (1) help me access, collect, or obtain information |
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| 1 | | that is relevant to a decision, including medical, | 2 | | psychological, financial, educational, housing, and | 3 | | treatment records; | 4 | | (2) help me understand my options so that I can make an | 5 | | informed decision; and | 6 | | (3) help me communicate my decision to appropriate | 7 | | persons. | 8 | | I want my supporter to have: | 9 | | (Yes/No) A release allowing my supporter to see | 10 | | protected health information under the Health Insurance | 11 | | Portability and Accountability Act of 1996 is attached. | 12 | | (Yes/No) A release allowing my supporter to see | 13 | | confidential information under the Mental Health and | 14 | | Developmental Disabilities Confidentiality Act is | 15 | | attached. | 16 | | (Yes/No) A release allowing my supporter to see | 17 | | educational records under the Family Educational Rights | 18 | | and Privacy Act of 1974 and the Illinois School Records | 19 | | Act is attached. | 20 | | (Yes/No) A release allowing my supporter to see | 21 | | substance abuse records under Confidentiality of Alcohol | 22 | | and Drug Abuse Patient Records regulations is attached. | 23 | | This supported decision-making agreement is effective | 24 | | immediately and will continue until (insert date) or until the |
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| 1 | | agreement is terminated by my supporter or me or by operation | 2 | | of law. | 3 | | Signed this .... day of ........, 20.... | 4 | | (Signature of Principal) (Printed name of principal) | 5 | | Consent of Supporter | 6 | | I, (name of supporter), consent to act as a supporter | 7 | | under this agreement. | 8 | | (Signature of supporter) (Printed name of supporter) | 9 | | (Witness 1 signature) (Printed name of witness 1) | 10 | | (Witness 2 signature) (Printed name of witness 2) | 11 | | WARNING: PROTECTION FOR THE ADULT WITH A DISABILITY | 12 | | IF A PERSON WHO RECEIVES A COPY OF THIS AGREEMENT OR IS AWARE | 13 | | OF THE EXISTENCE OF THIS AGREEMENT HAS CAUSE TO BELIEVE THAT | 14 | | THE ADULT WITH A DISABILITY IS BEING ABUSED, NEGLECTED, OR | 15 | | EXPLOITED BY THE SUPPORTER, THE PERSON SHALL REPORT THE | 16 | | ALLEGED ABUSE, NEGLECT, OR EXPLOITATION TO THE ADULT | 17 | | PROTECTIVE SERVICES HOTLINE: 1-866-800-1409, 1-888-206-1327 | 18 | | (TTY)." | 19 | | This form is not intended to exclude other forms or |
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| 1 | | agreements that identify the principal, supporter, and types | 2 | | of supports. | 3 | | Section 55. Reliance on agreement; limitation of | 4 | | liability. | 5 | | (a) A person who receives the original or a copy of a | 6 | | supported decision-making agreement shall rely on the | 7 | | agreement. | 8 | | (b) A person is not subject to criminal or civil liability | 9 | | and has not engaged in professional misconduct for an act or | 10 | | omission if the act or omission is done in good faith and in | 11 | | reliance on a supported decision-making agreement. | 12 | | Section 60. Recognition of supporters. A decision or | 13 | | request made or communicated with the assistance of a | 14 | | supporter in conformity with this Act shall be recognized for | 15 | | the purposes of any provision of law as the decision or request | 16 | | of the principal and may be enforced by the principal or | 17 | | supporter in law or equity on the same basis as a decision or | 18 | | request of the principal. | 19 | | Section 65. Reporting of suspected abuse, neglect, or | 20 | | exploitation. If a person who receives a copy of a supported | 21 | | decision-making agreement or is aware of the existence of a | 22 | | supported decision-making agreement and has cause to believe | 23 | | that the adult with a disability is being abused, neglected, |
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| 1 | | or exploited by the supporter, the person shall report the | 2 | | alleged abuse, neglect, or exploitation to the Adult | 3 | | Protective Services Hotline: 1-866-800-1409, 1-888-206-1327 | 4 | | (TTY). | 5 | | Section 70. Term of agreement; revocation. | 6 | | (a) A supported decision-making agreement extends until | 7 | | terminated by either party or by the terms of the agreement. | 8 | | (b) A supported decision-making agreement is terminated | 9 | | if: | 10 | | (1) the Office of Inspector General or Adult | 11 | | Protective Services substantiated an allegation of abuse | 12 | | or neglect by the supporter; or | 13 | | (2) there is a restraining order against the supporter | 14 | | by the principal. | 15 | | (c) A principal may revoke his or her supported | 16 | | decision-making agreement and invalidate the supported | 17 | | decision-making agreement at any time by: | 18 | | (1) canceling or destroying the supported | 19 | | decision-making agreement or directing another in the | 20 | | presence of the principal to destroy the decision-making | 21 | | agreement; | 22 | | (2) executing a statement, in writing, that is signed | 23 | | and dated by the principal, expressing his or her intent | 24 | | to revoke the supported decision-making agreement; or | 25 | | (3) verbally expressing the intent of the principal to |
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| 1 | | revoke the supported decision-making agreement in the | 2 | | presence of 2 witnesses. | 3 | | (d) Unless the supported decision-making agreement | 4 | | provides a different method for the resignation of the | 5 | | support, a supporter may resign by giving notice to the | 6 | | principal. | 7 | | (e) The last signed agreement holds.
| 8 | | Section 99. Effective date. This Act takes effect 6 months | 9 | | after becoming law.
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