Illinois Q and A

Ten commonly asked questions about PAD’s for Illinois

Please note: the following 10 FAQs are designed to provide a quick and accessible guide to what your state’s statutes say – or do not say – about PADs.  The FAQs do not attempt to provide a complete picture of the law in your state, nor can they take the place of legal advice.  These answers are accurate as of September 2019.

1.  Can I write a legally-binding psychiatric advance directive (PAD)?

Yes.  Illinois’ Mental Health Treatment Preference Declaration Act allows you to document choices about psychotropic (psychiatric) medications, electroconvulsive therapy (ECT) and/or psychiatric hospitalization.   It also allows you to appoint an agent to make mental health treatment decisions for you, should you become incompetent to make those decisions yourself.  In Illinois, such an agent is known as an “attorney in fact”.  There is a standard form, called a “Declaration for Mental Health Treatment”, which covers both treatment choices and the appointment of an agent.  This form is not mandatory but is recommended.  The Illinois Guardianship and Advocacy Commission has also published a helpful guide for consumers, available here.

2.  Can I write advance instructions regarding psychiatric medications and/or hospitalization?

Yes.  You can document your wishes regarding medications, hospitalization and/or electroconvulsive therapy, including refusal of certain treatments.  You may consent in advance to hospitalization in a mental health facility, but only for a maximum of seventeen days.  Your mental health care providers are required to follow those instructions, unless one of the exceptional circumstances applies (see question 9 below).

3.  Does anyone have to approve my advance instructions at the time I make them?

No.  However, your advanced instructions must be contained in a written document.  It is recommended that you use the standard form Declaration for Mental Health Treatment.  Your Declaration must be signed and dated by you and by two competent adults, each of whom must know you personally and must certify that you were of sound mind when the document was created, and that you were not placed under any pressure to sign it.  The following people are excluded from acting as witnesses: your agent, your relatives, your partner, and employees of your health care provider.

4.  Can I appoint an agent to make mental health decisions for me if I become incompetent?

Yes.  Unless one of the exceptional circumstances applies (see question 9 below), your attorney-in-fact may make any decision regarding your mental health treatment that you could have made, were you competent to do so.  An employee of your health care provider or health care facility cannot act as your attorney-in-fact, unless he/she is also your relative.  Your attorney-in-fact must accept his/her appointment in writing.

5.  If I become incompetent, can my agent make decisions for me about medications, and/or hospitalization?

Yes.  Your attorney-in-fact may make decisions about both medications and hospitalization, including refusals, unless one of the exceptional circumstances applies (see question 9 below).

6.  Does my agent have to make decisions as he/she thinks I would make them (known as “substituted judgment”), or does he/she have to make them in my “best interests”?

Your agent must exercise substituted judgment to the extent that he or she can do so, based on what you have written in your Declaration for Mental Health Treatment or on wishes you have otherwise expressed.  If it is not possible to make a decision in that way, your agent must make the decision in your best interests.

7.  Is there any rule that says that I can only make advanced instructions, only appoint an agent, or that I must do both?

No.  You may do one, the other, or both.

8.  Before following my PAD, would my mental health care providers need a court to determine I am not competent to make a certain decision?

No.  While a court may make the decision, it is sufficient that two physicians decide that you are unable to make mental health decisions yourself at that time.

9.  Does the statute say anything about when my mental health providers may decline to follow my PAD?

Yes.  The statute says that your providers may decline to follow your Declaration: (1) when a court contradicts the wishes expressed in your Declaration, or (2) in an emergency.  Your provider is also not obliged to follow your instructions if you are admitted or treated involuntarily under Illinois’ Mental Health and Developmental Disabilities Code.

10.  How long does my PAD remain valid?

Your Declaration for Mental Health Treatment remains valid for three years, unless you are deemed incompetent to make decisions at the time the Declaration would normally expire, in which case it remains valid until you regain competence.  You may revoke your Declaration in whole at any time you remain competent, by communicating that intention to your mental health care providers in writing.  If you make a new Declaration within three years of your last one, and are competent to do so at that time, it automatically revokes the old Declaration.  If you appoint an attorney in fact, he/she may withdraw at any time; however, if you have also provided instructions in your Declaration, they will remain effective until the end of the period of validity.