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A Different Perspective to the Proposal for a Pilot Project To Establish a Single Docket for Mental Health and Guardianship Proceedings
Recently, the County and Probate Divisions of the Cook County court system announced an exciting initiative seeking to enhance the lives of individuals living with mental illness and the friends and family who support them by merging the case management of respondents involved in both mental health and guardianship proceedings. In the January 2025 edition of the Illinois State Bar Association’s monthly newsletter “Mental Health Matters,” the Editor opens the newsletter by announcing the new proposal and invites the members of the Mental Health Law Section of the Illinois State Bar Association to share their comments, criticisms and suggestions to the new proposal. [Read the Editor’s Note from January.] One author accepted the invitation and wrote an article where she presented reasons to be skeptical of the proposed new calendar.1 The author is quick to disparage what she identifies as the program’s shortcomings, but I invite the author to look closer and see the forest through the trees.
In order to completely understand the impact of this unique pairing, it is necessary to look at what each of these proceedings does. In a mental health hearing, the Court presides over hearings where a hospital files a petition seeking to either involuntarily medicate or commit one of its patients for a limited period of time. In a hearing seeking to involuntarily medicate or commit a person, the State must prove that the person has a serious mental illness and that their illness causes them to engage in at least one of three different behaviors the legislature has identified as warranting State intervention. 405 ILCS 5/2-107.1; 405 ILCS 5/3-701. In a guardianship hearing, the Court presides over hearings where the Court is charged with determining whether a person has a disability and then must determine if that disability prevents the person from being able to partially or completely make their own personal and financial decisions. 755 ILCS 5/11a-3; 755 ILCS 5/11-12(c).
As a former assistant state’s attorney who handled cases in the mental health division for over six years and as an attorney who is new to the Probate Division and who is also a member of the Mental Health Law Section of the Illinois State Bar Association, I’m thrilled about this pairing and the potential opportunity it will provide for wellness and stability to a unique community within the Cook County court system.
The guiding principle for both proceedings is the principle of parens patriae. The doctrine of parens patriae is a Latin term that refers to the duty or responsibility of a government to care for its most vulnerable citizens including those with disabilities. The Supreme Court identified that the State has a legitimate parens patriae interest in furthering the treatment of those who are mentally ill and to provide for mentally ill or developmentally disabled persons who are not capable of making reasoned decisions regarding their mental health treatment. In re C.E., 641 N.E.2d 345, 353 (1994). The Court made note of the fact that the provisions of the Mental Health and Developmental Disabilities Code were “narrowly tailored to specifically address the State’s concern for the well-being of those who are not able to make a rational choice...” Id. Both the Probate Act and the Mental Health and Developmental Disabilities Code apply the principle of parens patriae in identifying limited situations where the State can intervene and care for its most vulnerable citizens while strictly limiting the breadth of the intrusion through significant safeguards. With the new Pilot Project, the primary focus will be the well-being of the Respondent and the hope is that the two divisions of the court system can use the guidelines of the Probate Act and the Mental Health and Developmental Disabilities Code together in trying to bring the Respondent to mental wellness and in protecting their ability to care for their personal and financial needs.
For the six years that I litigated mental health cases under the rules of the Mental Health and Developmental Disabilities Code, I primarily worked with the family members and friends of individuals diagnosed with a serious mental illness and the medical professionals treating them. By the time I had the honor of working with this group of people, the Court was often their last hope. For many, the family member or friend for whom they were seeking help had endured a revolving door of psychiatric hospitalizations with no lasting relief. Often, the individual living with a serious mental illness was either discharged well before they were stable, stopped taking their medication shortly upon discharge or were never admitted. Unless the person diagnosed with the mental illness consented, the family member or friend that the hospital identified as an appropriate caretaker upon discharge was denied any information about the diagnosis, the treatment the individual was given while hospitalized or their treatment plan upon discharge. Parents of adult children expressed frustration over the fact that hospitals accepted their insurance to cover the cost of the care their child was given, but that same hospital was unable to provide any information about how to help care for that adult child once they brought them home, unless the adult child consented. They were equally frustrated that although they tried to apply for Social Security Disability Income to financially support their loved one who was unable to work, they were prohibited from doing so without their loved one’s consent. They desperately wanted to help their child but faced one roadblock after another.
The Pilot Project has identified a problem that IS in need of a solution
In the author’s response to the announcement of the Pilot Project proposal, she identifies “two overarching concerns.” The first concern is the claim that the “project looks to be a solution in search of a problem” and fails to “provide citations or specific information to show why such a pilot program would be needed.” The author concludes that because the article announcing the program cites “no data, research, or citations whatsoever to show how many respondents have faced a proceeding under the Mental Health Code while also facing guardianship in Cook County, or generally why a person would need to holistically lose their rights to personal and/or financial and mental-healthcare decision-making in one fell swoop in related proceedings on one docket,” that the project is over reaching and unnecessary. While I would agree that the article published in the Illinois State Bar Association’s monthly newsletter announcing the Pilot Project was brief on many of the details as to how this project will develop, the proposed merger had been the topic of discussions with the stakeholders for months prior. In addition, a more detailed description of the project was included in Chief Judge Timothy C. Evans’ General Administrative Order 2025-04, entered on February 13, 2025. Nonetheless, any individual who practices in these areas of the law, has a family member or friend with a serious mental illness or is a medical professional practicing in the field of mental health needs little encouragement to agree that a “problem” exists.
The “problem” came through the doors of the State’s Attorney’s Office every day I worked there. Not a day went by that I did not encounter someone who was desperate to find a “solution” for their loved one who was struggling with their mental illness. And most importantly, the “problem” that they identified was not limited to their loved one’s mental illness. The “problem” reached far beyond the person’s mental health diagnosis because the effects of untreated or undertreated mental illness can permeate practically every aspect of the person’s life and the lives of many of the people in their circles. Families came in looking for help because their loved one’s illness was causing them to display aggressive or destructive behaviors in their homes and their landlords were threatening to evict them and sometimes the entire family. Families came in looking for help because the hospital expected them to take their loved one back home, but the hospital could not give them any details about their treatment, and they were afraid that the aggressive behavior that their loved one displayed before being hospitalized would return. Families came in looking for help because their loved one was unable to take care of their minor child, unable to manage their medical needs or was being taken advantage of by individuals who prey on those with disabilities and cognitive impairments. The list goes on…
Admittedly, there are shortcomings to what the Mental Health and Developmental Disabilities Code and the Probate Act can offer, but it is the recognition of these limitations and the opportunity to bring the two together and coordinate care that makes this Pilot Project so appealing. An initial order for involuntary treatment or involuntary commitment under the Mental Health and Developmental Disabilities Code is only good for 90 days and more often than not, the Respondent is discharged from the hospital well before the 90 days has expired. 405 ILCS 5/2-107.1(a-5)(5). Hospitals have limited beds allotted for psychiatric care and as a result, patients who could have benefited from a few more days or weeks in a controlled hospital setting are prematurely returned to the community and expected to access out-patient care that is equally undervalued and unavailable. The unfortunate result is that although many patients see significant improvements while hospitalized, those improvements quickly dissipate upon discharge due to either a refusal to adhere to or access outpatient care. During my time practicing as an assistant state’s attorney in the mental health unit, there were many times where family members called seeking help because their loved one had been repeatedly hospitalized within the last year to only be discharged again and again before they were stable or because their loved one stopped taking their prescribed medication soon after discharge. Many times, they did not even know where their loved one was after being discharged from the hospital because the hospital was not allowed to tell them. Under the guidelines of the Mental Health and Developmental Disabilities Code, the family and friends who were seeking help could get the person with a mental illness to the hospital, but the Code’s assistance was extremely limited beyond that.
On the other hand, while the Probate Act cannot give a court appointed guardian the ability to consent to mental health treatment or admission to a psychiatric facility when the ward is objecting, the Probate Act does allow a guardian to make other decisions on behalf of a ward when their mental illness or developmental disability is preventing them from acting in their own best interests. Under the Probate Act, a guardian can consent to a life-saving medical procedure that a person with a mental illness may be irrationally refusing or assist with finding them a safe place to live. 755 ILCS 5/11a-17; 755 ILCS 5/11a-18. And it is this exact coordination of court oversight that the Pilot Program seeks to merge.
The author of the article cites sensationalized stories that she “quickly” gathered from a Google search to convince the reader of the horrors of guardianship. I submit that this misrepresentation of guardianship is unfair as it ignores a primary tenet of the Probate Code that “[g]uardianship shall be utilized only as is necessary to promote the well-being of the person with a disability, to protect him from neglect, exploitation, or abuse, and to encourage development of his maximum self-reliance and independence. Guardianship shall be ordered only to the extent necessitated by the individual’s actual mental, physical and adaptive limitations.” 755 ILCS 5/11a-3(b). The author’s misrepresentation robs the reader of the opportunity to truly assess the project’s value and fails to acknowledge that a person with a mental illness not only may be living with a mental illness that left untreated is causing them harm, but may be causing them to be at risk in other areas of their life or to put the community at risk. For example, it is common for a person with a serious mental illness to have other underlying medical conditions. Often, when a person’s mental illness is untreated, they may not be able to appreciate the severity of their underlying medical conditions. This deficit may then cause them to neglect their medical conditions or refuse treatment based on symptoms of their mental illness that may cause them to become suspicious and paranoid of the individuals trying to help them.
The Pilot Project is seeking to enhance the lives of the Respondents and the people who care for them
The second concern that the author identifies with the Pilot Project is that “[t]the proposed pilot project works to separate people from their rights ‘efficiently’ and ‘holistically’ to ‘benefit’ stakeholders, except the most important stakeholder--the respondent.” Again, this statement fails to see the bigger picture. It is true that in a guardianship proceeding, the Respondent can be found to no longer have the capacity to make their own personal and/or financial decisions, but this result is only possible after a hearing where the Petitioner must prove, by clear and convincing evidence, that the Court should make that decision. 744 ILCS 5/11a-3. Moreover, before a court can find that a plenary or full guardianship is appropriate, the Court must first determine that a limited guardianship would not sufficiently protect the person with a disability. 755 ILCS 5/11a-12. Clearly, the Probate Act was written with the intent to limit court intervention if possible. Additionally, the Respondent in a guardianship proceeding has a right to be present for the hearing, has a right to counsel, to present evidence, to confront and cross-examine all witnesses and has the right to a jury trial. 755 ILCS 5/11a-11. Similarly, in a mental health proceeding, the Respondent can only be subjected to involuntary treatment or involuntary commitment after the State proves, by clear and convincing evidence, that such a result is warranted. 405 ILCS 5/2-107.1(a)(a-5)(4); 405 ILCS 5/3-808. In a mental health hearing, the Respondent also has a right to be present, a right to counsel and a right to a jury trial in an involuntary commitment hearing. 405 ILCS 5/3-802 to 405 ILCS 5/3-806. Thus, and contrary to what the author suggests, there are procedural safeguards in both mental health and guardianship proceedings that protect the Respondent’s rights, prevent abuse and only put these measures in place when they are truly warranted and when the evidence supports the results. Furthermore, in both mental health and guardianship proceedings, the legislature has carved out specific provisions that allow the Respondent to challenge and even vacate the Court’s findings. Under the Probate Act, the Respondent has the right to terminate a court’s finding that they are disabled and to either modify or restore their right to make their own personal and financial decisions. 755 ILCS 5/11a-20.
The potential interplay between the two divisions of the Court is an exciting proposition. Although a judge presiding over a mental health proceeding can direct the Respondent to receive medication against their will or stay in the hospital against their will, their authority essentially stops there. While a judge who presides over a mental health proceeding has the authority to put an order of protection in place because it is a court of general jurisdiction, the Mental Health and Developmental Disabilities Code is silent about this request. However, Section 11a-10.1 of the Probate Act specifically provides that “[a]n order of protection, as defined in the Illinois Domestic Violence Act of 1986, may be issued in conjunction with a proceeding for adjudication of disability and appointment of guardian if the petition for an order of protection alleges that a person who is a party to or the subject of the proceeding has been abused, neglected or exploited.” 755 ILCS 5/11a-10.1 This provision very clearly recognizes that in many situations where a person is living with a disability, they are often vulnerable to abuse, neglect, and financial exploitation. With respect to concerns that often arise about a disabled person’s ability to manage or protect their financial and personal affairs, a judge in a guardianship proceeding can also direct, after a person is found to be in need of a guardian of their person and/or estate, that someone else will manage their finances, decide what medical treatment may be necessary while they are in the hospital or even that it may be in their best interests to not have contact with certain people who may be trying to harm them.
There is no perfect solution to the “problem” that currently exists, but let me be certain that a problem most definitely exists. I agree that advance directives can and do offer an alternative to the Pilot Project that is proposed, but advance directives are not always an option and in the small segment of the population that this Pilot Project aims to serve, that is very often the case. A power of attorney for health care document can be revoked at any time and when a person who is living with mental illness is untreated, they are often at their most vulnerable and suspicious. It is often at the time when they could most benefit from having the foresight to execute the power of attorney document that they become the most suspicious of it and, unfortunately, revoke its ability to help. Similarly, although a declaration for mental health treatment is a great resource, the document is only valid for three years and since most serious mental illnesses are a lifelong journey, these documents are often allowed to expire and therefore become useless in times of need. There is no question that advance directives can provide life-long stability for many people who live with mental illness, but for the segment of the population where these documents are not in place or have been revoked, mental health and guardianship proceedings are the next best alternative. And it is this specific segment of the population that this Pilot Project is seeking to reach.
Finally, and most importantly, no assessment of the value and need for this Pilot Project could be complete without considering the “most important stakeholder” of all, the Respondent. As certain as I am that a “problem” exists, I am equally certain that not every person with a mental illness or a disability needs a court to intervene in their right to lead an autonomous life. Both the Mental Health and Developmental Disabilities Code and the Probate Act were written to apply in extremely limited situations because every person, whether they have a disability or not, has the right to live their life as they choose. The group of Respondents that this Pilot Project seeks to reach is a very small segment of our population, but it is a population that deserves thoughtful and measured consideration of their needs. Personally, I welcome oversight to ensure that the Court does not overreach and I welcome a critical eye to ensure that the Respondent’s rights are protected.
So, to the author of the article questioning the value of this Pilot Project, I ask her to be patient and give the Pilot Project an opportunity to prove its worth. From my perspective, the potential benefits from this unique pairing can be transformative for the Respondent and for the Respondent’s friends, family and greater communities who support them. I implore the author to continue to hold all the stakeholders to the highest bar in protecting the rights of the individuals the Pilot Project seeks to reach. And lastly, I invite the author and anyone else who may have reservations about the need for this pairing to join me in supporting the Pilot Project and to give the program a chance to succeed.
Michelle Luburic is an attorney with the Monahan Law Group, LLC, with extensive experience in mental health law. Ms. Luburic currently sits on the Mental Health Law Section Council of the Illinois State Bar Association and is the Board President of NAMI Metro Suburban.
- Ann Krasuski, Response to the Proposal for a Pilot Project to Establish a Single Docket for Mental Health and Guardianship Proceedings, Illinois State Bar Association’s Mental Health Matters (January 2025).