2023 Illinois Compiled Statutes › Chapter 755 - ESTATES › 755 ILCS 43/ - Mental Health Treatment Preference Declaration Act.

(755 ILCS 43/1)
Sec. 1. 
		Short title. 
		This Act may be cited as the Mental Health Treatment Preference Declaration Act.
(Source: P.A. 89-439, eff. 6-1-96.)
(755 ILCS 43/5)
Sec. 5. Definitions. As used in this Act:
(1) "Adult" shall have the same meaning as provided in Section 10 of the
Health Care Surrogate Act.
(2) "Attending physician" shall have the same meaning as provided in
Section 10 of the Healthcare Surrogate Act.
(3) "Attorney-in-fact" means
an adult validly appointed under this Act to make mental health treatment
decisions for a principal under a declaration for mental health treatment and
also means an alternative attorney-in-fact.
(4) "Declaration" means a document, in hard copy or electronic format, making a declaration of preferences or
instructions regarding mental health treatment.
(5) "Incapable" means that, in the opinion of 2 physicians or the court, a
person's ability to
receive and evaluate information effectively or communicate decisions is
impaired to such an extent that the person currently lacks the capacity to make
mental health treatment decisions.
(6) "Mental health facility" shall have the same meaning as provided in
Section 1-114 of the Mental Health and Developmental Disabilities Code.
(7) "Mental health treatment" means electroconvulsive treatment, treatment
of mental illness with psychotropic medication, and admission to and retention
in a mental health facility for a period not to exceed 17 days for care or
treatment of mental illness.
(8) "Physician" means a physician or psychiatrist as defined in Sections
1-120 and 1-121, respectively, of the Mental Health and Developmental
Disabilities Code.
(9) "Principal" means the person making a declaration for his or her
personal mental health treatment.
(10) "Provider" means any mental health facility or any other person which
is devoted in whole or part to providing mental health services.
(Source: P.A. 101-163, eff. 1-1-20.)
(755 ILCS 43/10)
Sec. 10. 
		Declaration of preference or instructions.
(1) An adult of sound mind may make a declaration of preferences or
instructions regarding mental health treatment.  The preferences or
instructions may include consent to or refusal of mental health treatment.
(2) A declaration for mental health treatment may be invoked within 3
years of its execution unless it is revoked.  The authority of a named
attorney-in-fact and any alternative attorney-in-fact named in the declaration
continues in effect as long as the declaration appointing the attorney-in-fact
is in effect or until the attorney-in-fact has withdrawn.  If a declaration for
mental health treatment has been invoked and is in effect at the expiration of
3 years after its execution, the declaration remains effective until the
principal is no longer incapable.
(Source: P.A. 89-439, eff. 6-1-96.)
(755 ILCS 43/15)
Sec. 15. 
		Designation of attorney-in-fact. 
		A declaration may designate a
competent adult to act as attorney-in-fact to make decisions about mental
health treatment.  An alternative attorney-in-fact may also be designated to
act as attorney-in-fact if the original designee is unable or unwilling to act
at any time.  An attorney-in-fact who has accepted the appointment in writing
may make decisions about mental health treatment on behalf of the principal
only when the principal is incapable.  The decisions must be consistent with
any desires the principal has expressed in the declaration.
(Source: P.A. 89-439, eff. 6-1-96.)
(755 ILCS 43/20)
Sec. 20. Signatures required.
(a) A declaration is effective only if it is
signed by the principal, and 2 competent adult witnesses.  The witnesses must
attest that the principal is known to them, signed the declaration in their
presence and appears to be of sound mind and not under duress, fraud or undue
influence.  Persons specified in Section 65 of this Act may not act as
witnesses.
(b) The signature and execution requirements set forth in this Act are satisfied by: (i) written signatures or initials; or (ii) electronic signatures or computer-generated signature codes. Electronic documents under this Act may be created, signed, or revoked electronically using a generic, technology-neutral system in which each user is assigned a unique identifier that is securely maintained and in a manner that meets the regulatory requirements for a digital or electronic signature. Compliance with the standards defined in the Uniform Electronic Transactions Act or the implementing rules of the Hospital Licensing Act for medical record entry authentication for author validation of the documentation, content accuracy, and completeness meets this standard.
(Source: P.A. 101-163, eff. 1-1-20; 102-38, eff. 6-25-21.)
(755 ILCS 43/23)
Sec. 23. Format. Documents, writings, and forms referred to in this Act may be in hard copy or electronic format. Nothing in this Act is intended to prevent the population of a declaration, document, writing, or form with electronic data.
(Source: P.A. 101-163, eff. 1-1-20.)
(755 ILCS 43/25)
Sec. 25. 
		Operation of declaration. 
		A declaration becomes operative when
it is delivered to the principal's attending physician and remains valid until
revoked or expired.  The attending physician shall act in accordance with an
operative declaration when the principal has been found to be incapable.  The
attending physician shall continue to obtain the principal's informed consent
to all mental health treatment decisions if the principal is capable of
providing informed consent or refusal.
(Source: P.A. 89-439, eff. 6-1-96.)
(755 ILCS 43/30)
Sec. 30. 
		Authority of attorney-in-fact.
(1) The attorney-in-fact does not have authority to make mental health
treatment decisions unless the principal is incapable.
(2) The attorney-in-fact is not, as a result of acting in that capacity,
personally liable for the cost of treatment provided to the principal.
(3) Except to the extent the right is limited by the declaration or any
federal law, an attorney-in-fact has the same right as the principal to receive
information regarding the proposed mental health treatment and to receive,
review and consent to disclosure of medical records relating to that treatment.
This right of access does not waive any evidentiary privilege.
(4) In exercising authority under the declaration, the attorney-in-fact has
a duty to act consistently with the desires of the principal as expressed in
the declaration.  If the principal's desires are not expressed in the
declaration and not otherwise known by the attorney-in-fact, the
attorney-in-fact has a duty to act in what the attorney-in-fact in good faith
believes to be the best interests of the principal.
(5) An attorney-in-fact is not subject to criminal prosecution, civil
liability or professional disciplinary action for any action taken in good
faith pursuant to a declaration for mental health treatment.
(Source: P.A. 89-439, eff. 6-1-96.)
(755 ILCS 43/35)
Sec. 35. 
		Declaration has no effect on other services. 
		A person shall not
be required to execute or to refrain from executing a declaration as a
criterion for insurance, as a condition for receiving mental or physical health
services, or as a condition of discharge from a mental health facility.
(Source: P.A. 89-439, eff. 6-1-96.)
(755 ILCS 43/40)
Sec. 40. 
		Declaration-Part of patient's medical record. 
		Upon being presented with a declaration, a physician or other provider shall
make the declaration a part of the principal's medical record.  When acting
under authority of a declaration, a physician or provider must comply with it
to the fullest extent possible, consistent with reasonable medical practice,
the availability of treatments requested, and applicable law.  If the physician
or other provider is unwilling at any time to comply with the
declaration, the physician or provider may withdraw from providing treatment
consistent with the exercise of independent medical judgment and must promptly
notify the principal and the attorney-in-fact and document the notification in
the principal's medical record.
(Source: P.A. 89-439, eff. 6-1-96.)
(755 ILCS 43/45)
Sec. 45. 
		Principal's wishes must be followed.
(1) The physician or provider may subject the principal to mental health
treatment in a manner contrary to the principal's wishes as expressed in a
declaration for mental health treatment only:
(a) When a court order contradicts the principal's     wishes as specified in the declaration; or
(b) In cases of emergency endangering life or health.
(2) A declaration does not limit any authority provided in Sections 3-100
through 3-910 of the Mental Health and Developmental Disabilities Code either
to take a person into custody, or to admit, retain, or treat a person in a
health care facility.
(Source: P.A. 89-439, eff. 6-1-96.)
(755 ILCS 43/50)
Sec. 50. Revocation. A declaration may be revoked in whole or in part by
written statement at any time by the principal if the principal is not
incapable, regardless of whether the written revocation is in an electronic or hard copy format.  A written statement of revocation is effective when signed by the
principal and a physician and the principal delivers the revocation to the
attending physician. An electronic declaration may be revoked electronically using a generic, technology-neutral system in which each user is assigned a unique identifier that is securely maintained and in a manner that meets the regulatory requirements for a digital or electronic signature. Compliance with the standards defined in the Uniform Electronic Transactions Act or the implementing rules of the Hospital Licensing Act for medical record entry authentication for author validation of the documentation, content accuracy, and completeness meets this standard.  The attending physician shall note the revocation as part
of the principal's medical record.
(Source: P.A. 101-163, eff. 1-1-20; 102-38, eff. 6-25-21.)
(755 ILCS 43/55)
Sec. 55. 
		Declaration protects physician or provider from legal action. 
		A
physician who, to a reasonable degree of medical certainty, determines that the
principal is capable or incapable of revoking a declaration or a physician or
provider who administers or does not administer mental health treatment
according to and in good faith reliance upon the decision or direction of the
attorney-in-fact or the validity of a declaration is not subject to criminal
prosecution, civil liability, or professional disciplinary action resulting
from a subsequent finding of a declaration's invalidity.
(Source: P.A. 89-439, eff. 6-1-96.)
(755 ILCS 43/60)
Sec. 60. 
		Restrictions on who may serve as attorney-in-fact. 
		None of the
following may serve as attorney-in-fact:
(1) The attending physician or mental health service provider or an employee
of the physician or provider, if the physician, provider, or employee is
unrelated to the principal by blood, marriage or adoption.
(2) An owner, operator or employee of a health care facility in which the
principal is a patient or resident, if the owner, operator or employee is
unrelated to the principal by blood, marriage, or adoption.
(Source: P.A. 89-439, eff. 6-1-96.)
(755 ILCS 43/65)
Sec. 65. 
		Restrictions on who may witness declaration. 
		None of the
following may serve as a witness to the signing of a declaration:
(1) The attending physician or mental health service provider or a
relative of the physician or provider;
(2) An owner, operator, or relative of an owner or operator of a health care
facility in which the principal is a patient or resident; or
(3) A person related to the principal by blood, marriage, or adoption.
(Source: P.A. 89-439, eff. 6-1-96.)
(755 ILCS 43/70)
Sec. 70. 
		Withdrawal of attorney-in-fact.
(1) An attorney-in-fact may withdraw by giving notice to the principal.  If
a principal is incapable, the attorney-in-fact may withdraw by giving notice to
the attending physician.  The attending physician shall note the withdrawal as
part of the principal's medical record.
(2) A person who has withdrawn under the provisions of subsection (1) of
this Section may rescind the withdrawal by executing an acceptance after the
date of the withdrawal.  The acceptance must be in the same form as provided by
Section 75 of this Act for accepting an appointment.  A person who rescinds a
withdrawal must give notice to the principal if the principal is capable or to
the principal's attending physician if the principal is incapable.
(Source: P.A. 89-439, eff. 6-1-96.)
(755 ILCS 43/75)
Sec. 75. 
		Form of declaration. 
		A declaration for mental health treatment
shall be in substantially the following form:
DECLARATION FOR MENTAL HEALTH TREATMENT
I ................., being an adult of sound mind, willfully and voluntarily
make this declaration for mental health treatment to be followed if it is
determined by 2 physicians or the court that my ability to receive and evaluate
information
effectively or communicate decisions is impaired to such an extent that I lack
the capacity to refuse or consent to mental health treatment.  "Mental health
treatment" means electroconvulsive treatment, treatment of mental illness with
psychotropic
medication, and admission to and retention in a health care facility for a
period up to 17 days.
I understand that I may become incapable of giving or withholding informed
consent for mental health treatment due to the symptoms of a diagnosed mental
disorder.  These symptoms may include:
..............................................................
..............................................................
PSYCHOTROPIC MEDICATIONS
If I become incapable of giving or withholding informed consent for mental
health treatment, my wishes regarding psychotropic medications are as follows:
........ I consent to the administration of the following medications:
..............................................................
....... I do not consent to the administration of the following medications:
--------------------------------------------------------------
Conditions or limitations:....................................
..............................................................
..............................................................
ELECTROCONVULSIVE TREATMENT
If I become incapable of giving or withholding informed consent for mental
health treatment, my wishes regarding electroconvulsive treatment are as
follows:
........ I consent to the administration of electroconvulsive
treatment.
........ I do not consent to the administration of electroconvulsive
treatment.
Conditions or limitations:....................................
..............................................................
..............................................................
ADMISSION TO AND RETENTION IN FACILITY
If I become incapable of giving or withholding informed consent for mental
health treatment, my wishes regarding admission to and retention in a health
care facility for mental health treatment are as follows:
..........  I consent to being admitted to a health care facility for mental
health treatment.
......... I do not consent to being admitted to a health care facility for
mental health treatment.
This directive cannot, by law, provide consent to retain me in a facility for
more than 17 days.
Conditions or limitations:....................................
..............................................................
..............................................................
SELECTION OF PHYSICIAN
(OPTIONAL)
If it becomes necessary to determine if I have become incapable of giving or
withholding informed consent for mental health treatment, I choose
Dr. ..........
............. of ................... to be one of the 2 physicians who will
determine whether I am
incapable.  If that physician is unavailable, that physician's designee shall
determine whether I am incapable.
ADDITIONAL REFERENCES OR INSTRUCTIONS
..............................................................
		..............................................................
		..............................................................
		Conditions or limitations:....................................
..............................................................
ATTORNEY-IN-FACT
I hereby appoint:
NAME ..................................
ADDRESS ...............................
TELEPHONE # ...........................
to act as my attorney-in-fact to make decisions regarding my mental health
treatment if I become incapable of giving or withholding informed consent for
that treatment.
If the person named above refuses or is unable to act on my behalf, or if I
revoke that person's authority to act as my attorney-in-fact, I authorize the
following person to act as my attorney-in-fact:
NAME ................................
ADDRESS .............................
TELEPHONE # .........................
My attorney-in-fact is authorized to make decisions that are consistent with
the wishes I have expressed in this declaration or, if not expressed, as are
otherwise known to my attorney-in-fact.  If my wishes are not
expressed and
are not otherwise known by my attorney-in-fact, my attorney-in-fact is to act
in what he or she believes to be my best interest.
		.................................
		(Signature of Principal/Date)
AFFIRMATION OF WITNESSES
We affirm that the principal is personally known to us, that the principal
signed or acknowledged the principal's signature on this declaration for mental
health treatment in our presence, that the principal appears to be of sound
mind and not under duress, fraud or undue influence, that neither of us is:
A person appointed as an attorney-in-fact by this document;
The principal's attending physician or mental health service provider or a
relative of the physician or provider;
The owner, operator, or relative of an owner or operator of a facility in
which the principal is a patient or resident; or
A person related to the principal by blood, marriage or adoption.
Witnessed By:
...........................        ...........................
(Signature of Witness/Date)          (Printed Name of Witness)
...........................        ...........................
(Signature of Witness/Date)          (Printed Name of Witness)
ACCEPTANCE OF APPOINTMENT AS ATTORNEY-IN-FACT
I accept this appointment and agree to serve as attorney-in-fact to make
decisions about mental health treatment for the principal.  I understand that I
have a duty to act consistent with the desires of the principal as expressed in
this appointment.  I understand that this document gives me authority to make
decisions about mental health treatment only while the principal is incapable
as determined by a court or 2 physicians.  I understand that the principal may
revoke this declaration in whole or in part at any time and in any manner when
the principal is not incapable.
................................... ..........................
(Signature of Attorney-in-fact/Date)       (Printed Name)
................................... ..........................
(Signature of Attorney-in-fact/Date)(Printed Name of Witness)
NOTICE TO PERSON MAKING A
DECLARATION FOR MENTAL HEALTH TREATMENT
This is an important legal document.  It creates a declaration for mental
health treatment.  Before signing this document, you should know these
important facts:
This document allows you to make decisions in advance about 3 types of mental
health treatment:  psychotropic medication, electroconvulsive therapy, and
short-term
(up to 17 days) admission to a treatment facility.  The instructions that you
include in this declaration will be followed only if 2 physicians or the court
believes that
you are incapable of making treatment decisions.  Otherwise, you will be
considered capable to give or withhold consent for the treatments.
You may also appoint a person as your attorney-in-fact to make these
treatment decisions for you if you become incapable.  The person you appoint
has a duty to act consistent with your desires as stated in this document or,
if your desires are not stated or otherwise made known to the attorney-in-fact,
to act
in a manner consistent with what the person in good faith believes to be in
your best interest.  For the appointment to be effective, the person you
appoint must accept the appointment in writing.  The person also has the right
to withdraw from acting as your attorney-in-fact at any time.
This document will
continue in effect for a period of 3 years unless you become incapable of
participating in mental health treatment decisions.  If this occurs, the
directive will continue in effect until you are no longer incapable.
You have the right to revoke this document in whole or in part at any time
you have been determined
by a physician to be capable of giving or withholding informed consent for
mental health treatment.
A revocation is effective when it is communicated to your attending physician
in writing and is signed by you and a physician.  The revocation
may be in a form similar to the following:
REVOCATION
I, ........., willfully and voluntarily revoke my declaration for mental health
treatment as indicated
[ ] I revoke my entire declaration
[ ] I revoke the following portion of my declaration
..............................................................
..............................................................
..............................................................
..............................................................
Date ...............           Signed ........................
		(Signature of principal)
I, Dr. ..............., have evaluated the principal and determined that he or
she is capable of giving or withholding informed consent for mental health
treatment.
Date ..............                   ........................
		(Signature of physician)
If there is anything in this document that you do not understand, you should
ask a lawyer to explain it to you.  This declaration will not be valid unless
it is signed by 2 qualified
witnesses who are personally known to you and who are present when you sign or
acknowledge your signature.
(Source: P.A. 89-439, eff. 6-1-96; 90-655, eff. 7-30-98.)
(755 ILCS 43/85)
Sec. 85. 
		(Amendatory provisions; text omitted).
(Source: P.A. 89-439, eff. 6-1-96.)
(755 ILCS 43/90)
Sec. 90. 
		(Amendatory provisions; text omitted).
(Source: P.A. 89-439, eff. 6-1-96.)
(755 ILCS 43/100)
Sec. 100. 
		(Amendatory provisions; text omitted).
(Source: P.A. 89-439, eff. 6-1-96.)
(755 ILCS 43/103)
Sec. 103. 
		(Amendatory provisions; text omitted).
(Source: P.A. 89-439, eff. 6-1-96.)
(755 ILCS 43/105)
Sec. 105. 
		(Amendatory provisions; text omitted).
(Source: P.A. 89-439, eff. 6-1-96.)
(755 ILCS 43/110)
Sec. 110. 
		
		The Department of Mental Health and Developmental Disabilities
Act is amended by repealing Section 60.
(Source: P.A. 89-439, eff. 6-1-96.)
(755 ILCS 43/115)
Sec. 115. 
		
		The Planning Council on Mental Health Law, Article 1 of "An Act
in relation to mental health and developmental disabilities", approved August
29, 1990, Public Act 86-1190, is repealed.
(Source: P.A. 89-439, eff. 6-1-96.)