Recent Developments

Legislative Updates.  The following are recently passed laws that are of interest to those representing disabled adults in Illinois.

Amendment to the Probate Act of 1975 (755 ILCS 5/11a-10)
Public Act 97-0375, Effective August 15, 2011:
The following language is added giving the Guardian ad Litem access to medical or mental health records of an alleged disabled person: "Notwithstanding any provision in the Mental Health and Developmental Disabilities Confidentiality Act or any other law, a guardian ad litem shall have the right to inspect and copy any medical or mental health record of respondent which the guardian ad litem deems necessary, provided that the information so disclosed shall not be utilized for any other purpose nor be redisclosed except in connection with the proceedings."

Mental Health and Developmental Disabilities Code (MHDDC) and the Probate Act of 1975 Amendments,
Public Act 96-0612, Effective January 1, 2010.
Amendment to MHDDC (405 ILCS 5/3-400):
The amendment deals with voluntary admissions to mental health facilities.  The new MHDDC provides that a person who may be voluntarily admitted to a mental health facility includes "a person adjudicated a disabled person."  The bill deletes the old statutory language that permitted a voluntary admission simply “if the director deems such person clinically suitable for admission as a voluntary recipient.”  Instead, the amendment to the MHDDC provides that a person may be voluntarily admitted if the facility director determines and documents in the medical chart that the person (1) is clinically suitable for admission as a voluntary recipient, and (2) has the capacity to consent to voluntary admission.  Further, the new law sets forth the criteria to determine whether a person has capacity to consent to voluntary admission.  A person is deemed to have capacity if they understand all of the following: (1) that they are being admitted to a mental health facility; (2) that they may request discharge at anytime and the request must be in writing and the discharge is not automatic; and (3) that within 5 business days after receipt of the written request for discharge, the facility must either discharge the person or initiate commitment proceedings.
Amendment to the Probate Act of 1975 (755 ILCS 5/11a-17(a)):
The following language is added to address a guardian of the person's authority, or lack thereof, to consent to a voluntary mental health admission:"A guardian of the person may not admit a ward to a mental health facility except at the ward's request as provided in Article IV of the Mental Health and Developmental Disabilities Code and unless the ward has the capacity to consent to such admission as provided in Article IV of the Mental Health and Developmental Disabilities Code."
This addition to the Probate Act makes clear that an adjudicated a disabled person may consent to a voluntary admission, despite the adjudication of disability, so long as they possess the ‘capacity’ defined in the new 405 ILCS 5/3-200(b).  To read the entire act click here

Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act
Public Act 96-0177, Effective January 1, 2010.
Creates the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act. Contains provisions concerning jurisdiction over adult guardianships, conservatorships, and other protective proceedings. Sets forth guidelines to specify which court has jurisdiction to appoint a guardian or conservator for an incapacitated adult, by prioritizing the states which might claim jurisdiction.  Provides for designation of a "home state" and a "significant-connection state." Provides for communication and cooperation between courts. Contains provisions concerning transfer of guardianship or conservatorship to another state. Provides for registration and recognition of guardianship or protective orders from other states.  Synopsis as provided by Illinois General Assembly.  To read the entire act click here.

Sterilization of Ward under the Probate Act (NEW: 755 ILCS 5/11a-17.1)
Public Act 96-0272, Effective January 1, 2010.  
Amends the Probate Act of 1975. Provides that a guardian shall not consent to a ward's sterilization without a court order, but a court order is not required if a procedure is medically necessary to preserve the ward's life or prevent a serious impairment even though it may result in sterilization. Provides that if the motion of a guardian seeking to consent to a ward's sterilization shows that sterilization is warranted, the court shall appoint a guardian ad litem, who shall be an attorney or a qualified disabilities or mental illness advocate. Provides that the court may appoint counsel for the ward, and shall do so upon the ward's request, if the ward objects to sterilization, or the ward's position is adverse to the guardian ad litem. Provides that the court shall advise the ward of his or her right to appointed counsel. Provides for a medical and psychological evaluation to assess the ward's capacity concerning sterilization. Provides that the court shall determine if the ward has the capacity to consent to sterilization by considering whether the ward is able to understand the relationship between sexual activity and reproduction; reproduction consequences; and sterilization. Provides that the ward shall not be deemed to lack capacity solely on the basis of a disability. Provides that if the court finds that the ward has capacity to consent, and the ward objects or consents, the court shall enter an order based on the ward's decision. If the court finds that the ward does not have capacity and has no clear desire for sterilization, the court shall apply standards. Provides that those standards include that the court shall not authorize sterilization unless the court clearly finds that the ward lacks decisional capacity, is fertile, and capable of procreation; the benefits outweigh the harm; less intrusive alternatives were considered; and sterilization is in the ward's best interest, considering trauma or psychological damage if he or she had a child. Provides that the court shall consider if the ward is sexually active, the ability of the ward to understand reproduction and contraception, and other factors relative to the ward's best interest.  Includes other provisions.  Synopsis as provided by Illinois General Assembly. To read the entire act click here

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