Illinois General Assembly - Full Text of Public Act 096-0272
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Public Act 096-0272


 

Public Act 0272 96TH GENERAL ASSEMBLY



 


 
Public Act 096-0272
 
HB2290 Enrolled LRB096 07455 AJO 17547 b

    AN ACT concerning civil law.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 5. The Probate Act of 1975 is amended by adding
Section 11a-17.1 as follows:
 
    (755 ILCS 5/11a-17.1 new)
    Sec. 11a-17.1. Sterilization of ward.
    (a) A guardian of the person shall not consent to the
sterilization of the ward without first obtaining an order from
the court granting the guardian the authority to provide
consent. For purposes of this Article XIa, "sterilization"
means any procedure that has as its purpose rendering the ward
permanently incapable of reproduction; provided, however, that
an order from the court is not required for a procedure that is
medically necessary to preserve the life of the ward or to
prevent serious impairment to the health of the ward and which
may result in sterilization.
    (b) A guardian seeking authority to consent to the
sterilization of the ward shall seek such authority by filing a
verified motion. The verified motion shall allege facts which
demonstrate that the proposed sterilization is warranted under
subsection (f), (g) or (h) of this Section. The guardian ad
litem will notify the ward of the motion in the manner set
forth in subsection (c) of this Section.
    (c) Upon the filing of a verified motion for authority to
consent to sterilization, the court shall appoint a guardian ad
litem to report to the court consistent with the provisions of
this Section. If the guardian ad litem is not a licensed
attorney, he or she shall be qualified, by training or
experience, to work with or advocate for persons with a
developmental disability, mental illness, physical disability,
or disability because of mental deterioration, depending on the
type of disability of the ward that is alleged in the motion.
The court may allow the guardian ad litem reasonable
compensation. The guardian ad litem may consult with a person
who by training or experience is qualified to work with persons
with a developmental disability, mental illness, physical
disability, or disability because of mental deterioration,
depending on the type of disability of the ward that is
alleged. The guardian ad litem may also consult with health
care providers knowledgeable about reproductive health matters
including sterilization, other forms of contraception, and
childbirth. Outside the presence of the guardian, the guardian
ad litem shall personally observe the ward prior to the hearing
and shall inform the ward orally and in writing of the contents
of the verified motion for authority to consent to
sterilization. Outside the presence of the guardian, the
guardian ad litem shall also attempt to elicit the ward's
position concerning the motion, and any other areas of inquiry
deemed appropriate by the court. At or before the hearing, the
guardian ad litem shall file a written report detailing his or
her observations of the ward; the responses of the ward to any
of the inquiries detailed in this Section; the opinion of the
guardian ad litem and any other professionals with whom the
guardian ad litem consulted concerning the ward's
understanding of and desire for or objection to, as well as
what is in the ward's best interest relative to, sterilization,
other forms of contraception, and childbirth; and any other
material issue discovered by the guardian ad litem. The
guardian ad litem shall appear at the hearing and testify, and
may present witnesses, as to any issues presented in his or her
report.
    (d) The court (1) may appoint counsel for the ward if the
court finds that the interests of the ward will be best served
by the appointment, and (2) shall appoint counsel upon the
ward's request, if the ward is objecting to the proposed
sterilization, or if the ward takes a position adverse to that
of the guardian ad litem. The ward shall be permitted to obtain
the appointment of counsel either at the hearing or by any
written or oral request communicated to the court prior to the
hearing. The court shall inform the ward of this right to
obtain appointed counsel. The court may allow counsel for the
ward reasonable compensation.
    (e) The court shall order a medical and psychological
evaluation of the ward. The evaluation shall address the ward's
decision making capacity with respect to the proposed
sterilization, the existence of any less permanent
alternatives, and any other material issue.
    (f) The court shall determine, as a threshold inquiry,
whether the ward has capacity to consent or withhold consent to
the proposed sterilization and, if the ward lacks such
capacity, whether the ward is likely to regain such capacity.
The ward shall not be deemed to lack such capacity solely on
the basis of the adjudication of disability and appointment of
a guardian. In determining capacity, the court shall consider
whether the ward is able, after being provided appropriate
information, to understand the relationship between sexual
activity and reproduction; the consequences of reproduction;
and the nature and consequences of the proposed sterilization
procedure. If the court finds that (1) the ward has capacity to
consent or withhold consent to the proposed sterilization, and
(2) the ward objects or consents to the procedure, the court
shall enter an order consistent with the ward's objection or
consent and the proceedings on the verified motion shall be
terminated.
    (g) If the court finds that the ward does not have capacity
to consent or withhold consent to the proposed sterilization
and is unlikely to regain such capacity, the court shall
determine whether the ward is expressing a clear desire for the
proposed sterilization. If the ward is expressing a clear
desire for the proposed sterilization, the court's decision
regarding the proposed sterilization shall be made in
accordance with the standards set forth in subsection (e) of
Section 11a-17 of this Act.
    (h) If the court finds that the ward does not have capacity
to consent or withhold consent to the proposed sterilization
and is unlikely to regain such capacity, and that the ward is
not expressing a clear desire for the proposed sterilization,
the court shall consider the standards set forth in subsection
(e) of Section 11a-17 of this Act and enter written findings of
fact and conclusions of law addressing those standards. In
addition, the court shall not authorize the guardian to consent
to the proposed sterilization unless the court finds, by clear
and convincing evidence and based on written findings of fact
and conclusions of law, that all of the following factors are
present:
        (1) The ward lacks decisional capacity regarding the
    proposed sterilization.
        (2) The ward is fertile and capable of procreation.
        (3) The benefits to the ward of the proposed
    sterilization outweigh the harm.
        (4) The court has considered less intrusive
    alternatives and found them to be inadequate in this case.
        (5) The proposed sterilization is in the best interest
    of the ward. In considering the ward's best interest, the
    court shall consider the following factors:
            (A) The possibility that the ward will experience
        trauma or psychological damage if he or she has a child
        and, conversely, the possibility of trauma or
        psychological damage from the proposed sterilization.
            (B) The ward is or is likely to become sexually
        active.
            (C) The inability of the ward to understand
        reproduction or contraception and the likely
        permanence of that inability.
            (D) Any other factors that assist the court in
        determining the best interest of the ward relative to
        the proposed sterilization.

Effective Date: 1/1/2010