Guardianship should be a last resort when no other alternatives are available. Illinois has options that are less restrictive. One of those alternatives is the Health Care Surrogate Act.
The Health Care Surrogate Act is a provision for a patient who lacks decisional capacity, or has a qualifying condition, and does not have an advance directive in place. It is intended to clarify the rights and obligations of those involved in the private decisions by or on behalf of the patient. Under this act you can make routine medical decisions, and end of life decisions for someone who does not have decisional capacity and has a qualifying condition.
There are three categories that are considered a qualifying condition. One or all of the following categories could apply to the patient:
Typically, the attending physician assesses whether the patient lacks decisional capacity. A qualified physician (a doctor licensed to practice medicine in Illinois) can determine if the patient has a qualified condition.
Only certain people can be a surrogate decision maker, and it is determined in an order of priority. If more than one person has the same priority, then they must agree on the care. If they do not agree on the care, then it will be majority rule or the court will need to intervene. The hierarchy for who can be a surrogate decision maker is:
A surrogate decision maker shall make decisions for the patient, conforming as closely as possible, to what the patient would have done or intended. If after making reasonable efforts to ascertain the patient’s wishes are unclear to the surrogate then the surrogate should take into account the patient’s personal philosophical, religious and moral beliefs and values in determining what medical care the patient would want.
There are other options available before going the route of guardianship, which include power of attorney for healthcare, financial, and mental health; and trusts. If you have any questions about guardianship (or some alternatives) in Illinois, our Illinois guardianship attorneys can help. Please give us a call at 630-324-6666.
O'Flaherty Law is happy to meet with you by phone or at our office locations in: