Specific Learning Disabilities / Dyslexia and the Science of Reading

Posted on May 17, 2023 by MickiMoran

Twenty-six years ago, I opened the Child and Family Law Center of the North Shore, now a division of Grund & Leavitt). Some of you who have known me well are aware that one of the inspirations for this law practice was my journey with my own dyslexic son. We lived in one of the most affluent and well-funded school districts in Illinois. Despite these demographics my son was not learning to read. He disliked school in first and second grades and there was little if any progress in his ability to read. He was still struggling with letter recognition and misspelled his name.  All of the experts we saw recommended the Orton -Gillingham method for dealing with his dyslexia. [1]*Schools were then as they are now reluctant to use the word dyslexia in describing a student with a reading disorder. I was fortunate that I was able to find (after a number of months on a waiting list) a skilled O-G reading tutor. Five days a week I drove 45 minutes each way to allow my son to receive an hour of instruction.

He did learn to read but not until late 5th grade at great expense to his self-esteem but with his love of learning intact. Today he is an avid reader, loved college and all things to do with learning. However, in my naiveté, I assumed that once schools understood the need for research-based interventions and the importance of early intervention for all readers this would result in massive curriculum reform. I also saw that at least this aspect of my special education practice would be a non-issue, eliminated by the wide-spread recognition of the need for science- based reading instruction.

In the year 2000, the National Reading Panel issued their report and outlined the key elements of reading instruction, notably phonics-based instruction. [2] For a time, I brought this book to IEP meetings where I represented students who were identified as dyslexic. Some educators had not heard of this study, but others had and nodded in recognition across the IEP table. However, the interventions for struggling readers remained unchanged at most school districts.

I filed due process requests for parents who were forced to seek out private schools that offered the interventions they were seeking. This litigation often resulted in a positive change for that family but didn’t usually result in district wide changes. To be clear, litigation is expensive and parents were desperate. They understood that their child’s failure to be a solid reader would have a life long negative impact. Often the choice becomes ,should parents pay for a tutor or pay legal fees for a due process hearing. Like with other disabilities, success in litigation which resulted in enhanced services and support for an individual child did not result in the hoped for system wide reform and it appeared that most school districts took the results of the National Reading Panel as suggestions rather than a call to action that they would ignore.

Several times this school year I have been at IEP meetings where when asked (as I almost always do) what research-based interventions the district was providing or proposing, the answer was often an eclectic mixture of interventions with no discussion of why this would be effective for this student. In a number of meetings the answer has been “we use the Sally Calkins curriculum.” At a recent IEP I asked if they had gotten the “ memo” discrediting this intervention. Expecting to hear that they had not heard this I offered to look up the New York Times article while we were in the meeting. I was told by the administrator in charge of the meeting that they were well- aware of that information but would not be changing the curriculum since a study needed to be undertaken if they were to consider another intervention. I was told the process would take a year or two. This is what they had and was all that was available. These problems are not confined to under-performing or poor districts. Unfortunately, the most resistance to research-based interventions for students can be found in school districts in wealthy areas where change is slow to come.

This is a national emergency. Approximately one in three children in the United States cannot read at a basic level of comprehension. The outcomes are particularly troubling for Black and Native American children. [3]

Steps to take as a Parent:

  • Request a meeting with the school in writing.
  • If you suspect your child is struggling to read request a case study evaluation in writing.
  • If your school will not evaluate or is taking a wait to fail approach, if possible, seek out a private evaluation.
  • Keep track of your child’s work and test scores.
  • Be informed
  • Seek help from an attorney or advocate to assist in securing needed services.

Selected parent resources are listed below.

[1] Rose, Tessie E; Zirkel ( December 7, 2018). “Orton-Gillingham Methodology for Students with Reading Disabilities”. (https://files.eric.ed.gov/fulltext /EJ1785952.pdf) (PDF)

[2] Langenberg,Ph.D,Daniel. “Teaching Children to Read: An Evidence -Based Assessment of the Scientific Research Literature on Reading and Its Implications for Reading Instruction”. (https://wwwnichd.nih.gov/publications /pubs/nrp/documents/documents/report.pdf) (PDF)National Reading Panel

[3] https://www.newyorktimes.com/2023/04/16/us/science-of-reading-literacy -parents.html

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MENTAL HEALTH AWARENESS

Posted on May 16, 2023 by MickiMoran

This school year has been one where student’s mental health issues have been at the top of mind in cases in our office. Regrettably, this has been a period where calls from clients often involves bullying, threats of school violence, and bringing weapons to school. These are not neatly categorized since the client may be experiencing all three issues simultaneously.

The below fact pattern is an example of numerous cases that have presented themselves to our office in the past few months:

A middle-school student in anger informed a group of students at lunch that he was thinking of shooting up the school. This student had been repeatedly bullied over the last six months and teased because he was in special education. He had been knocked down at gym and called a gay slur. The student told a teacher who encouraged him to work it out with the other boys.

The student was embarrassed to tell his parents that this was happening. He became increasingly isolated and started to complain of stomach aches and illness on many mornings.

The student was pushed down at outdoor recess and kicked by one of the boys who had been bullying him all year. No adult witnessed this event. The next day he came to school with a knife in his backpack. He told another student that he was going to hurt someone if he was bullied again. That student reported this to the School Resource Officer who searched his backpack and locker.  A knife was discovered in the pocket of his backpack. The student was suspended and faced expulsion.

This fact pattern is unfortunately not isolated and is part of a pattern that has been increasingly common this school year.

Despite much anti-bullying rhetoric from schools, it has been my experience that this is often a reactive statement but that little is done to address a culture of bullying and threats until it has reached a crisis.

What can parents do:

  • Talk to their children and model behavior.
  • If your child is the victim of bullying put your concerns in writing and insist on a plan of action from the school. (For example, implementation of a written safety plan).
  • If your child is accused of bullying insist on a meeting with the school to discuss the concerns and allegations.
  • Determine if the school has a written anti-bullying policy.
  • Request a bullying investigation in writing.

Resources:

ISBE: Student Care (217)-785-5585

https://www.isbe.net/student-care

Bullying Illinois School Code 105 ILCS 5/27-23.7

Safe2Help Illinois offers students and families a safe, confidential way in which to share information that might help prevent suicides, bullying, school violence or other threats to school safety. This program is not intended to suspend, expel, or punish students. Rather, the goal is to get students to “Seek Help Before Harm.” Safe2Help Illinois will also develop an educational curriculum aimed at changing the culture in Illinois schools while also providing the resources to help parents and educators reinforce the components of this program. 

Safe2Help Illinois is a 24/7 program where students can use a free app, text/phone, website, and other social media platforms to report school safety issues in a confidential environment. Once vetted, the tips will immediately be shared with local school officials, mental health professionals and/or local law enforcement, depending on the nature of the tip. The program also will help local officials by connecting them with mental health resources or other appropriate resources to intervene and help students before they harm themselves or others. Visit their website to learn more.

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NEW GUIDANCE HELPS SCHOOLS SUPPORT STUDENTS WITH DISABILITIES and AVOID DISCRIMINATORY USE OF DISCIPLINE

Posted on August 16, 2022 by MickiMoran

On July 19,2022, the Department of Education for Civil Rights (OCR) and Office of Special Education and Rehabilitative Services (OSERS) released guidance to assist public elementary and secondary schools fulfill their responsibilities to meet the needs of students with disabilities and avoid discriminatory use of student discipline.

These newly released resources are the most comprehensive guidance on the civil rights of students with disabilities concerning student discipline and build on the Department’s continued efforts to support students through pandemic recovery.

            “ All students deserve to have their rights protected, and schools deserve greater clarity on how they can avoid the discriminatory use of discipline”, said U.S. Secretary of Education Miguel Cardona. “ Too often, students with disabilities face harsh and exclusionary disciplinary action at school. The guidance we’re releasing today will help ensure that students with disabilities are treated fairly and have access to supports and services to meet their needs-including their disability- based behavior.  We also expect that districts utilize the American Rescue Plan dollars to build capacity, provide professional learning opportunities for educators and school leaders and hire additional staff. These resources will also help schools live up to their legal obligations, support an equitable recovery for all our students, and make sure that students with disabilities get the behavioral support and special education services they need to thrive. “

            The new releases reflect the concern, particularly in light of the prevalence of student mental health issues associated with the pandemic, that some students with disabilities are not receiving the supports and services necessary to address their educational needs, including their disability- based behavior.

The new resources include:

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The Minor’s Right to Confidentiality under Illinois Law

Posted on August 15, 2022 by MickiMoran

Parents are often shocked at how much control their minor child has over their mental health records. In a post-dissolution of marriage proceeding, the petitioner mother sought to restrict the father’s parenting time with their minor child based on allegations that the father would continue to interfere with the medical services necessary for the child’s mental health. The father moved for production of the child’s medical, psychiatric, psychological, and school records, and the mother objected based on the child’s statutory privilege to keep the requested records confidential and objected to disclosing the records to his father. The trial court denied the father’s entire request for production of the child’s records. The Appellate Court addressed the issues that arise in the context of divorce and post-decree matters, specifically a minor’s right to deny access to his or her mental records, whether in the context of mental health treatment by private practitioners as well as in a therapeutic day school.

The minor was seeing a therapist and attended a therapeutic day school. Father sought both the entire school records as well as the private treatment provider’s records. Mother and the child representative were both in possession of the records. The minor objected to the disclosure of these records to the father.

The Appellate Court addressed two certified questions regarding these issues. The issues raised by the modified certified questions of law are whether a trial court, in a proceeding related to a petition to restrict parenting time under section 603.10 of the Marriage Act, (750 ILCS 5/603.10 (West 2018), where the allegations involve the mental health of a child who is at least 12 but under 18 years old, may deny a parent based on the provisions of the Confidentiality Act or the best interests of the child(1) the ability to discover otherwise relevant evidence concerning the child’s mental health and therapeutic school records on the ground that the child in question does not want the evidence disclosed to one parent; (2) the ability to discover the child’s medical records concerning the child’s mental health and school records from a therapeutic school even though those records are relevant to the proceedings and the parent is entitled to have access to those records pursuant to the parties’ allocation parental allocation judgment; and (3) access to the child’s mental health and therapeutic information that the child’s representative has reviewed.

The father in this case, argued that he wasn’t seeking records from the therapist but from his former wife. The court found that the father cannot avoid the effect of the child asserting his privilege against disclosure by seeking the documents from another source besides the therapist. The court further held that this privilege is not absolute and looked to the statute for clarity.
Section 4(a)(3) of the Confidentiality Act provides:
§ 4. (a) The following persons shall be entitled, upon request, to inspect and copy a recipient’s records or any part thereof:
(3) the parents of a recipient who is at least 12 but under 18 years, if the recipient is informed and does not object or if the therapist does not find that there are compelling reasons for denying the access. The parent or guardian who is denied access by either the recipient or the therapist may petition a court for access to the record. Nothing in this paragraph is intended to prohibit the parent or guardian of a recipient who is at least 12 but under 18 years of age from requesting and receiving the following information: current physical and mental condition, diagnosis, treatment needs, services provided, and services needed, including medication, if any [.] (Emphasis added.) 740 ILCS 110/4(a)(3) (West 2018).

The court ruled that the father in this case was entitled to the limited information that is outlined in the statute but nothing more after petitioning the court for that access. The fact that the entire record was disclosed to the mother, or the child representative does not nullify the child’s objection to the same information to the father.

The father also sought records from the therapeutic day school where his child attended asserting that he was entitled to education records under the terms of the Allocation Judgment. The court recognized the ambiguity created by the records kept by a therapeutic school and reasoned as follows:
Section 5(f)(1) of the Student Records Act recognizes the patient-therapist privilege and keeps confidential information communicated in confidence to a psychologist or other psychotherapist, school social worker, school counselor or school psychologist intern who works under the direct supervision of a school social worker, school counselor, or school psychologist. This list of protected communications includes information communicated in confidence to a teacher of an academic subject at a therapeutic school. 105 ILCS 10/5(f)(2) (West 2020). “Construing the provisions of the Student Records Act and the Confidentiality Act harmoniously, we conclude that privileged records and communications under the Confidentiality Act do not include a minor’s grades, grade level, academic assessments, and similar information, even if that child attends a therapeutic day school. Consequently, a trial court cannot deny a parent access under section 4(a)(3) of the Confidentiality Act access to the non-privileged school records of a minor child who attends a therapeutic day school, even if that child, who is at least 12 but under 18 years of age, objects to the parents request to inspect and copy those records. Furthermore, the trial court may conduct an in-camera review to ensure that the child’s therapeutic school’s records do not contain any privileged information concerning the child’s mental health services beyond the limited information regarding the child’s current physical and mental condition, diagnosis, treatment needs, services provided, and services needed, which the parent is entitled to receive. 740 ILCS 110/4(a)(3) (West 2018).

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The Child and Family Law Center: Advocating for the Legal Rights of Children for over 25 years

Posted on April 6, 2022 by MickiMoran

What does it take to win a Due Process Hearing?

A due process hearing is one of the mechanisms for resolving disputes regarding special education services between parents and school districts. Other less formal options such as mediation or a resolution session are available and typically occur before the parties go to a due process hearing. We make every effort to resolve disputes prior to going to a due process hearing. However, when it is not possible to resolve the issues a due process hearing may be necessary.

Parents often ask what it takes to win a due process hearing and this question is one that I have given a lot of thought to over the years. My answer is based on my experience litigating due process cases for over twenty-six years. Some of the answers may seem obvious while others may not. The following is a compilation of lessons learned as a parent’s attorney in these proceedings.

  1. The facts support the parent’s claim that their child was denied their rights under the Individuals with Disabilities Education Act (“IDEA”). There are many scenarios that meet this definition. Typically, the student has not received appropriate services, failed to make meaningful progress, or was not identified in a timely manner as a student with a disability. *
  2. The denial of these rights must rise to a denial of a free, appropriate, public education. Data supporting these arguments is a necessary element in a successful due process hearing.
  3. A well-organized parent who keeps good records is an asset in a hearing. Preparation from an attorney and collaboration with the family are essential.
  4. Documentation of the parental concerns to the school and evidence of the district’s failure to respond appropriately are often key elements in a hearing.
  5. The law supports the legal position that you are taking in the hearing. This is a complicated area of law that requires a knowledge of case law and prior decisions that provide guidance on the legal standards.
  6. Expert witnesses often determine whether a parent will prevail in a hearing.  Parent’s opinions are unlikely without some independent source, to persuade a hearing officer of their position. Choose experts carefully.
  7. The parent’s willingness to work with the school and to participate in the process even though there may an “agreement to disagree” on what is needed is a factor in hearing officer’s decisions.
  8. The ability to clearly articulate the relief you want from the hearing officer. Parents in conjunction with their legal counsel should be prepared to state very clearly what they want the school to do.
  9. At all times parents and legal counsel should behave in a professional manner.

Selected Resources:

http://wwwisbe.net/documents/parents-guide-special-ed-Aug.20pdf

If you are considering a due process action or simply want to discuss your child’s special education rights, please call our office at (312)-640-0500 and ask to speak to Micki Moran or email her at mmoran@grundlaw.com

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Getting the Right Reading Intervention Shouldn’t Be So Hard

Posted on August 11, 2021 by MickiMoran

It has been nearly 26 years since I started my practice with a focus on special education law and advocacy for children and adolescents. The practice is and was inspired and informed by my own son’s struggle with dyslexia. I was fortunate to have both the financial ability and resources to provide him with excellent research -based intervention. He learned to read using an Orton-Gillingham based approach. It was neither a fast nor easy solution. It worked. He is an avid reader and has a lifelong love of learning.

            After all this time the issue of reading intervention continues to be difficult for parents. Schools resist “labeling/identifying struggling readers as dyslexia. It is not uncommon for school systems to delay evaluations and interventions. Schools often do not utilize interventions that are researched based for students with specific learning disabilities relying on a patchwork of eclectic programs that depend on the skills or lack thereof a particular teacher and may even depend on what school a student attends in a district. This haphazard approach to something as basic as reading still surprises me. The science of reading intervention is not new. The Orton-Gillingham approach used 32 years that was implemented by my son’s reading teachers is hardly cutting edge and there is very little dispute that these interventions are needed and effective.

            Despite this fact, a common complaint from clients who seek our legal assistance has to do with the failure of their child’s school to agree to or even utilize research-based methodologies. Parents should push back when they are met with this resistance. Below, I have outlined a few tips for families who find themselves in this situation.

  1. Insist on an evaluation. If your school will not evaluate seek out a private comprehensive educational evaluation.
  2. Trust your gut. Parents often know there is a problem before the school does.
  3. Put every communication regarding your concerns to the school in writing.
  4. Track your child’s progress.
  5. Stay informed. [Resources to follow below]
  6. If the school takes a wait and see approach- agree on how long this period will last. Confirm that in writing.
  7. Agree on how progress or lack of progress will be monitored.
  8. Read with your child at home. The pandemic and school closures revealed deficits in reading that many parents were unaware of until their child was home and they saw the struggle first- hand.

Resources:

  • Dyslexia Handbook, Illinois State Board of Education, www.isbe.net
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Divorce Checklist

Posted on July 29, 2021 by MickiMoran

It is not uncommon for someone to consult with our office when they are just beginning to contemplate the possibility of divorce. Often, they want basic information about the legal process and their rights as well as advice on how to prepare for such a major life event. My clients have found it helpful to have a checklist that they can have on hand as a reference. It has been my experience that being organized helps in developing a plan and is useful in calming some client’s anxiety. Below is a checklist and although it is something that may vary from case to case it does provide a framework for people contemplating divorce.

Checklist

  1. Your child or children’s names and dates of birth. If there are special needs considerations that will impact aspects of the divorce it is important that those are detailed to your lawyer.
  2. Date and location of marriage or civil union.
  3. Your spouse’s name and employer.
  4. Information regarding your spouse or your being self-employment where applicable.
  5. Your employer’s name. Current income.
  6. The last three years of your tax returns. Mortgage statements on the marital residence.
  7. A copy of any prenuptial or postnuptial agreements.
  8. A summary of your debts.
  9. Vehicles.
  10. A list of property including retirement accounts owed before the marriage.
  11. A list of property, including retirement accounts accumulated during the marriage.
  12. Expenses for the children. (e.g. tuition, camps, tutoring)
  13. Vacation property.
  14. A list of any stock, stock options or investment accounts.
  15. An estimated monthly budget that should include all costs including utilities, insurance. This is an important tool in determining what the financial future holds for you and your family.
  16. An inventory of the personal property in your home. (e.g. art, furniture, electronics)

Non-Financial Issues

  1.  Mental Health concerns for either party that will impact parenting time or decision making.
  2. Health concerns.
  3. Parenting Plan proposals.
  4. Decision Making (shared, sole)
  5.  Post-divorce plans and vision for what post-divorce life will look like for your family.

            Not all of these things will be resolved immediately. Divorce is a process. It is always best if the parties can work together on these matters but that isn’t always possible. Regardless of the posture of your case it is essential that both parties be fully informed about the financial and child related issues in order to make the best decisions for the family.

            If you are exploring the possibility of divorce, already committed to divorcing or have post-decree issues please feel free to contact our office for a free consultation. Our office is dedicated to advocating for the best outcomes for children and families. Call (312)-640-0500 or email me at mmoran@grundlaw.com.  Consultations are available in person or by Zoom. Safety protocols are followed.

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WHAT TO DO IF YOUR CHILD IS ARRESTED?

Posted on June 4, 2020 by MickiMoran

Summer is upon us and as a general rule this is a time when our office gets calls from parents regarding their teenager or young adults arrest or questioning by police.

Have this discussion now. One time is not enough. Here are some Frequently Asked Questions that I hope will educate you and your teenager.

What should my teenager do if they are stopped by the police?

  • Be respectful.
  • Keep your hands out of your pocket and visible to the police.
  • Tell your child to provide his or her identification to the officer when asked.
  • Provide the insurance information and registration if they are driving.
  • Give them the name of your parents.
  • Politely but firmly indicate that they have been told by their parents not to answer any questions. Ask them to call your parents or an attorney. Have them state that they will not answer any questions. This is hard for most young people. It is very common even when they know that they shouldn’t talk to the police for them to give great detail or even sign a written statement. Police can be intimidating and often will promise that if the young person tells them what happened they won’t be arrested.
  • The police are not your friend.

Do I have to be present if my child is questioned? Not necessarily. Students are often questioned at school and describe to school officials the details of the incident. They are not “in custody”. Students should be instructed to ask to call a parent before being questioned at school.

However, Illinois law requires police to “immediately make a reasonable attempt to notify the parent” after a minor is taken into custody.

Should I consult an attorney? The answer is yes. The stakes are high and parents should not attempt to play lawyer. Be very cautious about urging your child to tell an officer everything and as a result waiving their rights. This isn’t the time to teach your child a lesson.

Can my teenager or young adult with a disability be arrested? Yes.

How can I prepare my child? If your child has a disability it is essential that you prepare them for interactions for police contact. Parents are often shocked that their child with autism or other developmental disabilities can be questioned by police and arrested. Some families I work with have a script that their teen can practice regarding police contact. It is helpful that this “script” include a checklist of what to do. Autism/Advocacy Network aane.org has a downloadable wallet card that an individual with autism can carry and provide to police.

If your child has been arrested, ticketed, or you are concerned that they will be facing legal consequences please call our office for a consultation at (312)-640-0500.            

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Co-Parenting in the Age of Coronavirus

Posted on March 31, 2020 by MickiMoran

There is no road map that allows us to provide hard guidance on how to manage parenting during this difficult time. Families are in unfamiliar territory. However, there are some things that hopefully will help you navigate co-parenting.

  1. Follow existing court orders. Parents must follow existing court orders. This is scary advice for clients who may feel that the other parent is not practicing social distancing practices. Courts are not generally hearing these cases at the moment. In Illinois most courts are closed until mid-May with the exception of emergencies. Common sense would indicate that if one parent has been exposed to COVID-19 then act responsibly even though it may violate the parenting plan. If a child or other family is at high risk medically that may impact how parenting time is exercised, don’t be arbitrary and act responsibly. Your failure to act in good faith during this time will be used against you in the future.
  2. Modifications. If you do decide to modify the existing Parenting Plan, I suggest you get this modification in writing. This can be done with your attorney by drafting a stipulation amending the existing schedule and signed by both parties.
  3. Be Flexible. Many of us including attorneys are working remotely. Some families are now faced with the challenge of working while home schooling and dealing with children home all day every day.  If possible support the other parent during this time to allow you both the option of working and supporting the education of your children.
  4. Keep communication neutral. Resist the desire to lash out at your ex at this time. Stay focused on the kids and the logistics of what needs to be done.
  5. Prioritize the Financial Needs of your child. If one parent loses a job or becomes unable to work due to illness or temporary closures this will require a rethinking of support and payment obligations.
  6. Parental contact. In some situations in person contact may be limited. Use Skype, Zoom or Face Time to ensure regular contact with the other parent. It is important for your family.
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Finding the Right Fit: Decision-Making Supports and Guardianship

Posted on February 13, 2020 by MickiMoran

There was a period in my practice that guardianship seemed like the only option for families of disabled adults. That is no longer the automatic solution. In our office we have always emphasized that there is no one size fits all. Guardianship does not solve most issues facing families with young adults with disabilities.

Here are a few scenarios that have come up over the years in my office.

            Matthew is 18. He is diagnosed with bi-polar disorder and a learning disability. Matthew only wants to play video games in the basement and refuses medication. The parents have been told by the school that they should seek guardianship in order to force Mathew to take medication.

            Anna is a young adult with Down Syndrome. She will be finishing her transition program at the high school next month on the day before her 22nd birthday. The parents have not pursued guardianship but rather worked with Anna in helping her make some of her decisions. Recently, Anna was sick with the flu and had to be hospitalized. The hospital wanted to make sure the parents had a legal right to make decisions.

            Frank is a young man with autism. He is non-verbal and is in a group home. His parents are very concerned about his care. They obtained guardianship of Frank when he turned 18.

The planning process for a family member with a disability should start well before the person’s 18th birthday. The educational team which includes the parents should discuss skills needed and any barriers or deficits that need remediation or support. Guardianship is not a must but an option. This is not an all or nothing approach of independence. There are other supports that exist to help.

****

Let’s talk about our hypothetical of Matthew. Matthew has average intelligence. He is impulsive and has had 3 psychiatric hospitalizations in the last year. His parents finally persuaded him to sign a Power of Attorney for Health Care and a Mental Health Declaration so that they can help him in decision making and have information about his treatment. The school is still insisting on guardianship. The parents are not sure that guardianship is the right solution.

FAQ: What options exist other than guardianship?

  • A Power of Attorney for Health Care
  • Mental Health Declaration
  • Delegation of Rights (for special education decision making)

FAQ: Do the parents have a right to make Matthew take medication if they become his guardians?

  • No. Guardianship does not give you the power to forcibly medicate a person with a mental illness.
  • In Matthew’s case the law is clear that a guardian of the person cannot override his decision not to take medication in a non-emergency situation without a petition to the court. 2-107(a) reads in pertinent part as follows:

            A Guardian of the Person cannot override the decision of the patient/ward in a non-emergency situation without a petition to the court. An adult recipient of services or the recipient’s guardian, if the recipient is under guardianship and the recipient’s substitute decision maker, if any, must be informed of the recipient’s right to refuse medication or electroconvulsive therapy. The ward has a right to refuse medication in a non-emergency situation. However, a guardian may be authorized to consent to the administration of psychotropic medication or electroconvulsive therapy to an objecting recipient only under the standards and procedures of subsection(a-5). This refers to the seven requirements that must be met in order to override the ward’s refusal. The acting physician can also petition the court for the involuntary treatment of the ward if both the ward and the guardian refuse treatment and must prove the same seven things that the guardian would have to prove to overcome the lack of consent.

The following must be proven at a hearing with clear and convincing evidence.

  1. That the recipient has a serious mental health or developmental disability.
  2. That because of said mental illness or developmental disability, the recipient exhibits any one of the following:
    1. Deterioration of his or her ability to function, as compared to the recipient’s ability to function prior to the current onset of symptoms of the mental illness or disability for which treatment is presently sought.
    1. Suffering, or
    1. Threatening behavior.
  3. That the illness or disability has existed for a period marked by the continuing presence of the symptoms set forth in item (b)) of this subdivision (4) or the repeated episodic occurrence of these symptoms.
  4. That the benefits of the treatment outweigh the harm.
  5. That the recipient lacks the capacity to make a reasoned decision about the treatment.
  6. That other less restrictive services have been explored and found inappropriate.
  7. If the petition seeks authorization for testing and other procedures, that such testing and procedures are essential for the safe and effective administration of the treatment.

After the petition has been filed, the court has seven days to hold a hearing and the parties are entitled to a continuance of seven days by right. If the seven statutory factors are proven at a hearing the ward’s lack of consent is over-ridden. If they are not proven the ward’s decision is affirmed.

FAQ: Does Guardianship give Matthew’s parents the right to make him live in a group home?

  • No. Matthew must consent.
  • This is not intended to be an exhaustive discussion of all the complexities of the Mental Health Confidentiality Act or the Probate Act. The real intent of this discussion is that guardianship over an adult with mental illness does not give you a magic wand that allows you to force treatment or admission to a facility.

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The options for Anna. Not unlike the scenario in Matthew’s case, Anna’s parents had always assumed that they would become Anna’s guardians when she turned 18. However, as Anna moved through school and they met other parents it became clear that there may be less restrictive options for helping Anna navigate the world more independently.

Anna looked to her parents for help in managing her money. She had a job after school at a local pet store. She had very clear ideas about her clothes, music and food choices. Anna wanted to get an apartment at some time like her older sister. Anna’s parents wanted a place at the table to support her in decisions. Anna and her parents decided that at least for now, they would agree that she would execute a Power of Attorney for Health Care that would be used if serious medical issues arose. Anna’s mother always accompanied her to any doctor appointments. This was important to both of them. They found a doctor who was very good at explaining things to Anna and asking for her input. For now, they would not pursue guardianship.

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