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Alternatives to Guardianship in Illinois

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Article written by Attorney Kevin O'Flaherty
Updated on
July 21, 2020

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.

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.

What is 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:

  • Terminal Condition – an illness or injury there is no reasonable prospect for a cure or recovery and death is imminent. Any application of life-sustaining treatment would only prolong the dying process.
  • Permanent Unconsciousness – the condition will last permanently, without improvement, and awareness of self and environment are absent. Continuing life-sustaining treatment provides only minimal medical benefit.
  • Incurable or Irreversible Condition – There is no reasonable prospect of a cure or recovery. The condition will ultimately cause the patient’s death.

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.

Who Can be a Surrogate?

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:

  1. The patient’s guardian of the person.
  2. The patient’s spouse.
  3. An adult daughter or son of the patient.
  4. Either parent of the patient.
  5. Any adult brother or sister of the patient.
  6. Any adult grandchild of the patient.
  7. A close friend of the patient.
  8. The patient’s guardian of the estate.
  9. The patients’ temporary custodian appointed under subsection(2) of Section 2-10 of the Juvenile Court Act of 1987 if the court has entered an order granting such authority pursuant to subsection (12) of Section 2-10 of the Juvenile Court Act of 1987.

What Types of Decisions Can the Surrogate Make?

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.

Drawbacks to the Surrogate Health Care Act

  • It does not take into account who the person wants to be their surrogate. The patient may not want a daughter to make decisions, but her granddaughter instead. However, the act requires the surrogate decision maker to be in the order or priority.
  • Only applies to medical decisions. Cannot assist with financial or other decision making.
  • Disagreement under surrogate order. Surrogate decision makers with the same priority may not agree on the medical care for the patient.

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.

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Alternatives to Guardianship in Illinois

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