The Combined Guardianship and Mental Health Docket, or Calendar 20, Segregates Some of the Trees From the Forest

The author of the companion article has not identified a problem that a combined docket solves. No doubt, the Mental Health Code (Code) and adult guardianship under the Probate Act address and strive to solve issues people face. Yet, as the author discusses, there are still shortcomings. But after several pages discussing gaps in mental health care and problems families face, she has not identified how establishing a combined docket solves any shortcomings or how it benefits respondents.

The author notes that “the proposed merger [of the guardianship and mental health dockets] had been the topic of discussions with the stakeholders for months prior.” Not invited to these preliminary discussions was the Illinois Guardianship and Advocacy Commission (GAC). This is curious because one GAC division, Legal Advocacy Service (LAS), is appointed by the court to represent respondents in approximately 6,000 mental health cases every year in Cook County, and another GAC division, the Office of State Guardian (OSG), is the court-appointed guardian for over 2,000 people who live in Cook County. LAS was not informed about the pilot project until October 22, 2024, when the judges’ written proposal was sent out to the ISBA Mental Health Section Council Central Community chat. The court could have benefited from GAC’s contribution to the “marketplace of ideas” during the planning stage to help the pilot project function with respondents in mind and iron out glitches and issues that had not been considered on the Calendar 20 docket.

The response points out that both guardianship and some matters under the Code have parens patriae in common. While parens patriae grants the State authority over guardianship and even to have a Mental Health Code (which also stems from the State’s police powers, Addington v. Texas, 441 U.S. 418, 426 (1979)), that does not mean that guardianship cases and proceedings under the Code operate under the same standards. Guardianship uses a best interests approach. The term “best interests” appears 26 times in Article XIa, governing adult guardianship. 755 ILCS 5/11a-1 et seq. Conversely, “best interests” seldom appears in the Code, most notably regarding voluntary admission before adjudication and agreed outpatient orders (i.e., respondent’s waiver of due process), where the court may dismiss a commitment petition or enter an agreed order if doing so is “in the best interest of the respondent and of the public.” 405 ILCS 5/3-800; 3-801.5(a)(1).  Importantly, the appellate court has explicitly said that best interests should not guide the court in matters under the Code. In re Jennice L., 2021 IL App (1st) 200407, ¶¶ 17-18; In re Nicholas L., 407 Ill. App. 3d 1061, 1078 (2d Dist. 2011).

Having a combined Calendar 20 risks conflating the best interests of a person under guardianship and the protections under the Mental Health Code that require strict compliance to protect a person’s liberty interests and constitutional right to refuse medication. In re C.E., 161 Ill. 2d 200, 211-214 (1994). Although judges and attorneys who work in the area of mental health care likely have concern for the well-being of people with mental illnesses, best interests are not consistent with the Mental Health Code. Rather, the Code is designed to protect people’s rights and to force intervention only as a last resort: “…the purpose of the statutory framework is to protect [people with serious mental illnesses], not just from themselves, but from us.”  In re Lisa G.C., 373 Ill. App. 3d 586, 598 (4th Dist. 2007), J. Knecht, dissenting.

Conflating the best interests approach of guardianship with the protections of the Mental Health Code is apparent in the author’s language that the Calendar 20 pilot project provides an opportunity to “coordinate care.”  This is not the court’s role under the Mental Health Code. Once the State has shown by clear and convincing evidence that a person is subject to involuntary medication, the case is “complete,” and the physician determines how to administer the treatment. In re Robert R., 338 Ill. App. 3d 343, 354 (4th Dist. 2003); 405 ILCS 5/2-107.1(a-5)(6) (giving physicians “complete discretion” not to administer the treatment). There is no need or authority for the court to remain involved in the respondents’ involuntary treatment without a proper post judgment motion before the court. 735 ILCS 5/2-1203.

The author offers only a single suggestion for a way that a combined docket may be helpful: in orders of protection. She notes that section 11a-10.1 of the Probate Act specifically provides for an order of protection while the Mental Health Code “is silent” about orders of protection, though also asserting that a judge presiding over a mental health proceeding could enter such an order anyway as a court of general jurisdiction. The Code, however, is not silent and does indeed provide for orders of protection: “An order of protection, as defined in the Illinois Domestic Violence Act of 1986, may be issued in conjunction with a proceeding for involuntary commitment if the petition for an order of protection alleges that a person who is party to or the subject of the proceeding has been abused by or has abused a family or household member.” 405 ILCS 5/3-820. A combined docket, then, is not needed to protect respondents from abuse, neglect or exploitation.

Further, the author responds to the suggestion that better than a combined docket is for the court to inform people about advance directives, by noting that a power of attorney easily can be revoked when it is most needed and that a mental health treatment declaration is effective for three years and may expire “in a time of need.” However, at the urging of the GAC, in 2021 the legislature amended the Power of Attorney Act to provide an optional delayed revocation provision: “A principal may elect a 30-day delay of the revocation of the principal's health care agency. If a principal makes this election, the principal's revocation shall be delayed for 30 days after the principal communicates his or her intent to revoke.” 755 ILCS 45/4-6 (a-5); P.A. 102-181 (eff. July 30, 2021). And mental health treatment preference declarations do not expire at the three-year mark if they have been invoked: “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.” 755 ILCS 43/10(2).

Most important, it is advance directives—not guardianship or Calendar 20— that can actually reduce the use of coercive crisis interventions in mental health care. Jeffrey W. Swanson et. al, Psychiatric advance directives and reduction of coercive crisis interventions, J. Ment. Health, 17(3): 255–267 (2008), at https://pmc.ncbi.nlm.nih.gov/articles/PMC2835342/. And—speaking to the author’s concerns about families not being able to override their loved one’s right to privacy in their medical records— advance directives permit facilities to disclose information to the person the recipient has selected as their trusted agent. 755 ILCS 43/30 (3); 755 ILCS 45/4-10 (c)(4) (See also 740 ILCS 110/6, permitting a facility to disclose records without consent as necessary for a recipient to apply for or receive benefits “when despite every reasonable effort it is not possible to obtain consent because the person entitled to give consent is not capable of consenting or is not available to do so.”).

The Calendar 20 court does encourage advance directives when it thinks appropriate. But we don’t need a combined docket to encourage advance directives. Any probate or mental health judge could inform people about advance directives. Also, the Patient Self Determination Act requires all facilities that receive federal funding, including mental health facilities, to inform patients (recipients) about advance directives. 42 U.S.C. § 1395cc(f); § 1396a(w). And at the GAC, we regularly inform our clients and their families about advance directives as it is advance directives that permit trusted agents to consent to mental health treatment.

Although the author doesn’t mention it, one stated purpose of Calendar 20 is to address the revolving door of people being admitted, discharged, and readmitted to mental health facilities. This is a laudable goal for people who do not want to be admitted to mental health facilities, but it is not clear how Calendar 20 can assist in this, especially when a guardian has no authority to admit a nonconsenting person to a mental health facility as a voluntary recipient or to consent to psychotropic medication over a respondent’s objection. In re Gardner, 121 Ill. App. 3d 7, 12 (4th Dist. 1984); 405 ILCS 5/2-107.1(b); (c).

Mental health concerns are prevalent in our society, though serious mental illness is rare. In Illinois, one in five people experience mental illness compared to 1 in 20 people who have a serious mental illness. NAMI Fact Sheet, 2021, IllinoisStateFactSheet.pdf. Calendar 20 singles out the even fewer number of people with serious mental illnesses in Cook County with court cases under the Code who are also facing guardianship or already have guardians appointed. It also singles out people subject to mental health orders who also have guardianship cases, and expects them to continue appearing in court for their mental health case after it is concluded, sometimes months later, without considering the court’s jurisdiction to do so, and even though a respondent has the ability to motion their mental health case up for further post judgment proceedings should they want to do so. To date, only 1 respondent out of 11 has appeared at Calendar 20.

The court has not identified how many people face both mental health and guardianship proceedings to justify this combined docket. At the same time, Calendar 20 segregates people with mental illnesses from other people under guardianship by creating a docket for them presided over by one judge on one day of the week, rather than letting all the probate judges address matters for people with mental illnesses in the regular course of their work. Segregating people with mental illnesses from other people with guardians may have the unintended effect of further stigmatizing them. Why not treat mental illness as a regular occurrence, not much different than other conditions that may warrant court intervention? Why segregate some of the trees from the rest of the forest?

Ann Krasuski is a staff attorney with the Illinois Guardianship and Advocacy Commission, Legal Advocacy Service, West Suburban Regional Office.