Health & Benefits

Worried about doing this on your own? You may be able to get free legal help.

Internet usage can be tracked. Use this to leave this site immediately. Remember to clear your browser history to hide activity.

The Health Care Surrogate Act

What is it?

The Health Care Surrogate Act is an Illinois law. It enables these people to make treatment decisions for those who cannot communicate their own medical decisions:

• Specified family members,
• Close friends, or
• Guardians.

What is its purpose?

The Health Care Surrogate Act provides a legal way to authorize certain people, called "surrogates," to make medical treatment decisions for patients who lack decision making capacity. It eliminates the need to go to court and get a court order.

Who can benefit?

• People who are terminally ill and lack the ability to make treatment decisions, or
• Their family, friends and guardians.

The Health Care Surrogate Act in general

The Health Care Surrogate Act applies when a person cannot make their own health care decisions. The person also does not have a:

• Health Care Power of Attorney,
• Living Will Declaration,
• Mental Health Treatment Preference Declaration authorizing others to make these decisions, or
• If one of these is in place, it does not apply to the patient's condition, or it is invalid for some reason.

In such cases, the Act allows the surrogate to make medical treatment decisions. This includes decisions to not use life support.

When a surrogate decision maker may make medical treatment decisions

A surrogate decision maker can decide to forgo life sustaining treatments if the patient has a qualifying condition. They may make other medical treatment decisions, if the patient lacks "decisional capacity." The surrogate decision maker will have access to the patient's medical records.

When a surrogate decision maker may make a decision to forgo life sustaining treatment

The Act permits a surrogate decision maker to forgo life sustaining treatment if three conditions are met:

• The patient must have no Health Care Power of Attorney, Living Will Declaration, or Mental Health Treatment Preference Declaration in place authorizing others to make these decisions. If one is in place, it does not apply to the patient's condition, or it is invalid for some reason.
• The patient must have a "qualifying condition."
• The patient must lack "decisional capacity."

Qualifying condition

The term "qualifying condition" means that the patient:

• Is terminally ill,
• Is permanently unconscious, or
• Has an incurable or irreversible medical condition:
  • For which there is no reasonable prospect of cure or recovery,
  • That will ultimately cause the patient's death, even if life-sustaining treatment is started or continued,
  • That imposes severe pain or an inhumane burden on the patient, and
  • For which initiating or continuing life-sustaining treatment provides only minimal medical benefit.

  A "qualifying condition" is determined by the attending physician.

  Decisional capacity

  "Decisional capacity" means the ability to understand the consequences of a decision regarding treatment and forgoing life-support. It also includes the ability to reach and communicate a decision. A patient's "decisional capacity" is determined by the attending physician.

  Procedure under the Health Care Surrogate Act

  A doctor may determine that a decision must be made on behalf of a patient who lacks capacity. The doctor is required to try to determine whether the patient has a valid capacity plan.

  If there is no plan in place. Or, the plan is invalid or does not apply. Then, the doctor must try to determine whether the patient has anyone available to [no-lexicon] serve [/no-lexicon] as a surrogate.

  Only those persons determined to serve as surrogates are authorized to make a decision. The doctor is legally authorized to follow the decision of the surrogate decision maker.

  Surrogates are required to try to do what the patient would want done. They should take into review the patient's personal, religious, moral beliefs, and ethical values. The surrogate may not know those beliefs and values. If so, the surrogates should make the decision based on the patient's best interests.

  Choosing the surrogate decision maker

  The following order determines who will serve as the surrogate decision maker:

  1. The patient's legally appointed "guardian of the person,"
  2. The patient's spouse,
  3. The patient's adult children,
  4. The patient's parents,
  5. The patient's adult siblings,
  6. The patient's grandchildren,
  7. A close friend of the patient,
  8. The patient's legally appointed "guardian of the estate," or
  9. The patient's temporary custodian, if one has been appointed under the Juvenile Court Act.

  When there is more than one person at that priority level, they are required to try to reach an agreement. Sometimes, an agreement cannot be reached. The doctor will honor the decision made by the majority of the surrogate decision makers (or the parent with custodial rights). However, the minority (or the parent without custodial rights) can initiate a guardianship proceeding in court to resolve the issue. Someone of another priority level who disagrees with the decision made may also file a guardianship case in court.

  Sometimes no one can be found to serve as a surrogate decision maker. Then, the decision about whether to forgo life support can be made only by a court-appointed guardian. Learn more about getting guardianship of an adult.