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HB 5365

DISABILITY-DECISION MAKING

104th Regular Session Introduced by Sara Feigenholtz and 3 co-sponsors

The bill expands use of supported decision-making as a less-restrictive alternative to plenary guardianship, with training, safeguards, and formal court recognition.

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Bill Summary · HB 5365

Overview

HB5365 (104th Illinois General Assembly) amends the Probate Act of 1975 and the Supported Decision-Making Agreement Act. It introduces requirements for guardianship proceedings to consider supported decision-making (SDM) as an alternative to guardianship, and it strengthens standards and disclosures around SDM agreements. The bill aims to promote less-restrictive options for adults with disabilities and to formalize SDM arrangements with clear duties, training, and review processes.

Main purpose and intent

  • Expand consideration of less-restrictive alternatives to guardianship by requiring guardians ad litem and courts to inquire whether a supported decision-making agreement or a limited guardianship is appropriate in place of plenary guardianship.
  • Enhance the accessibility, legitimacy, and enforceability of SDM by codifying its definitions, duties, and required components in the Supported Decision-Making Agreement Act, and by clarifying that SDM agreements can be used as evidence in contexts beyond capacity determinations.

Key provisions and changes

In guardianship proceedings (Probate Act amendments)

  • Guardian ad litem duties (Section 11a-10):
    • Must inquire at preliminary stage and at hearing about whether SDM or a limited guardianship is appropriate as alternatives to guardianship.
    • Must observe the respondent and inform them of rights, including the possibility of AD/SDM-based alternatives.
    • File a written report detailing observations, responses, professional opinions, and the potential appropriateness of SDM or limited guardianship.
    • Right to access a respondent’s medical/mental health records necessary for the inquiry, with restrictions on redisclosure.
  • Hearing-related disclosures (Section 11a-11 and 11a-19):
    • Court must inquire into various aspects of the respondent’s functioning and decision-making capacity, including SDM or limited guardianship alternatives.
    • Notice to ward of right to seek modification, including termination of guardianship or modification via SDM or limited guardianship.

In the Supported Decision-Making framework (Supported Decision-Making Agreement Act)

  • Definitions added/clarified:
    • “Supported decision-making” and “Supported decision-making agreement” definitions aligned with the act’s Section 10.
  • SDM agreements (Sections 5, 50, 70, etc.):
    • Written in plain language.
    • Must specify areas where the principal requests support and where the supporter provides it.
    • Supporter must attest they are not disqualified and will complete required training; agreement states that supporters do not make decisions for the principal.
    • Includes information on reporting abuse, neglect, or exploitation.
    • Principal and each supporter must sign; principal may use reasonable modifications to sign.
    • Training requirement: supporters must complete mandated training within 45 days of signing; Commission must provide materials and public information.
    • Review every 2 years and update as needed.
    • Form includes duties of supporters (information access, helping interpretation, etc.) and restrictions (supporters advise, do not decide).
    • Agreement validity: continues until terminated by parties or by described events; triggers for suspension/termination include substantiated abuse by supporter, disqualification, revocation, court order, or a specified termination date.
    • Termination/revocation procedures for principal or supporters, and last-signed agreement governs when multiple agreements exist.
    • Protections and reporting: explicit protection and reporting language for abuse/neglect.
  • Additional provisions:
    • SDM agreement can be used as evidence for purposes beyond capacity/incapacity concerns (but not as proof of capacity in itself).
    • Presumption of capability for adults; capacity assessment to consider supports, including SDM.

Who would be affected

  • Adults subject to guardianship proceedings (respondents) and their guardians, guardians ad litem, and courts.
  • Individuals acting as SDM supporters and principals entering into SDM agreements.
  • The Guardianship and Advocacy Commission (GAC), which would provide training and materials for SDM.
  • Interested persons (spouses, parents, adult children, agencies, etc.) who may seek modifications to guardianships or SDM arrangements.
  • Public and private entities involved in guardianship, protection services, and disability advocacy.

Procedural and timeline aspects

  • Preliminary hearing timeline: hearings related to petitions for guardianship are set within 30 days; guardians ad litem may be appointed unless unnecessary for protection or informed decision-making.
  • SDM agreement requirements include a 45-day training window for supporters after consent to act.
  • SDM agreements require biannual reviews (every 2 years) and can be updated; automatic termination under specified conditions (e.g., substantiated abuse, disqualification, revocation, court order, termination date).
  • Notices and rights: wards receive notices outlining rights, with large-type forms and explicit rights to counsel, jury, and potential termination/modification options.
  • Evidence protocol: authenticated transcripts and, in some cases, Veterans Administration documentation can be admitted as appropriate.

Potential impact

  • Increased use of SDM as a viable alternative to guardianship, potentially reducing the number of plenary guardianships.
  • More robust protections and clarity for adults with disabilities engaging in SDM, including training, oversight, and explicit safeguarding against abuse.
  • Enhanced court procedures to systematically evaluate SDM and limited guardianship as part of disability adjudications.
  • Clear pathways for modification or termination of guardianships via SDM, improving autonomy and self-determination for adults with disabilities.

Note: The bill includes sponsor and co-sponsor information (Rep. Mussman; Co-sponsors Kifowit, Ness, Feigenholtz) and has a detailed seat-by-seat amendment history reflecting Judiciary-Civil committee actions and readings.

Compiled from official sources — confirm details with the bill’s official record.

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