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This article will provide an overview of Illinois Mental Health Laws, focusing on estate planning for a person with mental illness. The article will also examine the recent changes to Illinois Mental Health Laws for 2022.
The new year has brought significant changes to Illinois Mental Health Laws for 2022. This article will provide an overview of Illinois Mental Health Laws, focusing on estate planning for a person with mental illness. The article will also examine the recent changes to Illinois Mental Health Laws for 2022.
Mental health is more important than ever as many people have suffered from the effects of the global Covid-19 pandemic that has been impacting the world for nearly two years with no end in sight.
The Mental Health Code governs mental health laws in Illinois. The Mental Health Code protects people with mental illness and balances civil liberties. A state cannot do certain things like detaining a person with mental illness just based on having a mental illness.
The Mental Health Code defines mental illness. Things like substance abuse, dementia, antisocial behavior, or Alzheimer’s disease are not included in the Mental Health Code’s definition of persons with mental illness.
The Illinois Probate Act also defines persons with mental illness as persons with a disability. Under the Probate Act, a person with a disability is an individual at least eighteen years old and is a person with mental illness who cannot manage their person or estate fully. Managing a person is when the person with mental illness can no longer care for their basic personal needs, such as food essential personal care. When a person with mental illness cannot manage the estate, the person can no longer manage essential personal finances, providing shelter and other needs. A guardian of the person and a guardian of the estate will be discussed further below.
A delicate balance that mental health laws try to obtain is protecting a person with mental illness’ civil liberties and the right to society to be protected from a person with mental illness from harm that person may be likely to cause. The mere presence of mental illness does not mean that the state can interfere with a person with mental illness’ personal civil liberties by attempting an involuntary commitment or involuntary mental health treatment.
Suppose a person with mental illness is not a threat to themselves or society, then, by that notion. In that case, the state should not confine that person capable of surviving freely. Further, the state cannot direct unwanted treatment upon a person with mental illness, even with a person with mental illness who has permanent guardianship. However, suppose there is a severe emergency. In that case, a person with mental illness can undergo treatment if there is a threat of imminent harm. Suppose a person with mental illness can be ordered by a court to undergo treatment in a non-emergency situation. In that case, a court can find that the person does not have the capacity to consent to treatment, among other requirements.
What are Keynote Mental Health Laws in Illinois?
The biggest highlight of the Illinois Mental Health Code is the use of involuntary commitment over the use of voluntary admission. Public policy prefers voluntary admissions and treatment of persons with mental illness.
Suppose a person suffering from mental illness cannot be treated by voluntary admission or treatment. In that case, the Code provides very rigid and detailed procedures for obtaining involuntary commitment and treatment in Illinois.
How Do I Avoid Court Intervention for Involuntary Commitment or Treatment?
This next topic covers people receiving mental health services, which is not indicative alone of mental health problems, that have the capacity to make decisions, to consider a form of special needs estate planning. This is called an advance directive.
An advance directive for persons with mental illness, given the options between guardianship or involuntary commitment litigation, an advanced directive is the preferred method. It gives the person, establishing an advanced directive, called a principal, the self-confidence to control financial matters, health concerns, time, and the stress from not being involved in mental health litigation.
Advance directives are more potent than the powers of a court-appointed guardian. Once an advance directive has been executed, the court-appointed guardian cannot enforce authority over matters covered by an advance directive. A court cannot vacate a valid advance directive even if the principal makes decisions that others do not agree.
What is the Power of Attorney for Health Care?
A power of attorney for health care is one type of advance directive commonly used for persons with mental illness. Under a power of attorney for healthcare, it is required to appoint an agent to serve as the principal’s substitute decision-maker. The principal can determine the duration of the power of attorney for health care to last for a length of time or end upon the principal’s death. A power of attorney for healthcare can be revoked with ease. The principal can tear up the document creating the healthcare power of attorney, regardless of the principal’s capacity.
A principal can opt to have a thirty-day delayed revocation expressly. This is because the principal may, in the heat of the moment, revoke the power of attorney for healthcare, and this is often the very time the principal needs healthcare, and the agent would not be able to assist. This option serves as a failsafe, so the agent’s purpose to secure the principal’s mental health treatment is not frustrated by the principal’s rash acts. After the thirty-day delay period, the revocation then becomes adequate.
The healthcare power of attorney can be amended at any time. The agency can be amended at any time by a written amendment. The written amendment must be signed and dated by the principal or person acting at the direction of the principal.
Unless the agency period states a specific termination date, the healthcare power of attorney will last until the principal’s death.
Mental Health Treatment Declaration Act
Another applicable advance directive for persons with mental illness is a declaration for mental health treatment plan. This has similar power to the healthcare power of attorney, except for a key few differences:
- The declaration covers only three things: psychotropic medication, electroconvulsive therapy (ECT), and admission to and extended stay at a healthcare facility for mental health treatment.
- The declaration does not require the appointment of an agent (called an attorney-in-fact under the act), which means that the declaration is the only thing that has the power to authorize treatment decisions.
- A declaration, by an act of law, expires after a three-year term. If the principal would like to extend the declaration before the expiration date, a new declaration must be executed.
- A declaration cannot be easily revoked.
These are some examples of advance directives, which are the most prudent when a person with mental illness needs an estate plan.
What are the New Mental Health Laws in Illinois for 2022?
There is some changes that impacted Illinois mental health laws in 2022, particularly in the area of mental health estate planning.
The Electronic Wills and Remote Witnesses Act
Public Act 102-167 was passed in response to the Covid-19 pandemic and to bring the law into harmony with the seismic shift that the pandemic has caused. This act allows for probate of electronic wills and wills that were witnessed over telecommunication means, such as Zoom, for such purposes. The act also allows for documents other than wills to be executed and witnessed through Zoom and other telecommunication services. This act comports drastic change in the legal landscape as the Covid-19 pandemic is entering its second year of impairing traditional face-to-face meetings and in-person court sessions.
Changes To the Adult Guardianship Statute
Public Act 102-72 changed the Adult Guardianship Statute so that separate guardians may now be appointed for both the person and the estate. There are important distinctions between being the person’s guardian and the estate.
- Duties of a Guardian of the Person
- The Probate Act of 1975, 755 ILCS 5/1-1 et. Seq. gives extensive powers to the person’s guardian.
- The guardian of the person has control over medical decisions for the ward, where the ward will live, and has custody of the ward.
- The person’s guardian must try to comport with what the ward would do if the ward is deemed competent.
- The guardian of the person has the ability to make medical decisions on behalf of the ward.
- The medical decision powers range from routine healthcare, vaccinations, and ending life-sustaining treatment.
- The guardian of the person can authorize medical care even if the ward objects.
- The person’s guardian is also charged with making sure that the ward receives all needed professional services.
- Under the new law, a separate estate guardian may be appointed.
- The guardian of the ward’s estate has distinct duties from the guardian of the person. Below is a list of some of the duties of the person’s guardian. The list is meant to serve as an overview and is not exhaustive.
- The guardian of the estate of the ward has “…powers over the estate and business affairs of the ward that the ward could exercise if present and not under a disability.” 755 ILCS 5/11a-18(a-5).
- The guardian of the estate is charged with the care, management, and investment of the ward. 755 ILCS 5/11a-18(a).
- The guardian of the estate has to use the income from the estate to provide the ward with a comfortable lifestyle and education of the ward.
- It is recommended that as the best practice for the guardian of the estate, prepare an annual budget to present to the court that includes the following expenses: Food, Medical care, Housing, Clothing, Utilities, Taxes, Entertainment, Insurance, Cost of caregivers, Transportation This list is not meant to be exhaustive.
The new law permitting separate guardians for both the person and the estate recognizes the significant power the guardian has over the ward. By allowing separate guardians, it allows each guardian to focus on either the person or the estate.
House Bill 679 amends the Illinois Power of Attorney Act. 755 ILCS 45/1-1. The Illinois Power of Attorney Act is very much a living document that has been subject to several revisions due to advances in medicine and more modern financial needs. The principal gives a power of attorney to an agent (an individual) to make decisions regarding health care, property, and financial decisions. As discussed above, the latest change to the law states that a principal can elect a thirty-day delayed revocation of their health care agency to an agent. Once the principal chooses to elect a thirty-day delayed revocation, it is delayed for thirty days after the principal informs them of their intent to revoke the healthcare agency.
If you have any further questions regarding Illinois Mental Health Law Changes in 2022 or any mental health planning concerns, don’t hesitate to get in touch with one of our experienced mental health lawyers at
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