What is “Substitute Decision-Making?”

Basics of Substitute Decision-Making | What Are the Options for Substitute Decision-Making in Illinois?

Video by Attorney Kevin O'Flaherty
Article written by Illinois & Iowa Attorney Kevin O'Flaherty
Updated on
October 28, 2019

In this article, we will discuss the basic options for substitute decision-making in Illinois, including guardianship, powers of attorney, and surrogates.  We will answer “What is a Guardianship in Illinois?” “What is Power of Attorney in Illinois?” and “What are Surrogates in Illinois?”

What is “Substitute Decision-Making?”

Substitute decision-making is the process of legally declaring someone as responsible for another person.   Usually, if someone is over the age of 18, the state of Illinois recognizes them as an adult who is responsible for their own legal and financial decision making.  However, if a person is unable to make decisions for themselves, it is possible to legally declare someone as a decision maker for the adult.  This is typically done when someone is no longer of sound enough mind to make decisions in their own best interest, such as an elderly citizen or a developmentally-disabled adult.  There are several types and levels of power within substitute decision-making in Illinois.  These options have a variety of powers and can be significant changes to the lives of both the decision maker and the person they are making decisions for, so if you are looking for a decision maker for yourself or a loved one, it is important to consider the options available for you.  

What is a Guardianship in Illinois?

An adult guardian is a person or agency appointed by the court to make decisions for an adult who is unable to make decisions for themselves. Guardians must be appointed by the court as the person responsible for someone’s decision making who is otherwise unable to make decisions for themselves.  If a guardian is appointed, they will be responsible for regularly reporting to the court on expenses. The court also has the ability to change the guardian or their duties if they believe they are not acting within the best interest of the person they are assigned to.  Think of the guardian as manager who must report to their boss on their job.  If the boss (the court) believes that the manager (the guardian) is not working well with their employee (the person they are assigned to), they can be removed or have their powers adjusted.  Guardianship could be temporary, but are most often considered permanent.

For more on Guardianship, see our article and video “What is a Court Appointed Guardian?”

What is a Power of Attorney in Illinois?

A Power of Attorney is a signed legal document which assigns a person to make your decisions for you if you reach a point where you are unable to make decisions for yourself.  Unlike guardianship, a Power of Attorney is not regulated and checked by the courts and is instead assigned directly by the person who the Power of Attorney will be making decisions for.  The role and power that a person with Power of Attorney has is malleable.  For example, you can assign a General Power of Attorney that has power of every decision such as financial and business decisions, much like a Guardian.  However, you can also assign Power of Attorney to a special or specific type of decision. For example, you can have a Power of Attorney who is only allowed to make decisions for your health care or one who is only allowed to make decisions for your business.  As a power of attorney is not in check by the courts, it is important to be sure that whomever you assign as Power of Attorney is someone you trust to make the best decisions in the situations they are given power over.  

For more on Power of Attorney, see out article and video “Power of Attorney Explained.”

What are Surrogates in Illinois Law?

A surrogate decision maker is someone who can make emergency health care decisions for someone who is unable to decide for themselves.  Often, this falls on the next of kin who will have to make the decision on behalf of their loved one.  Which family member is next of kin can vary by state.  Here in Illinois, the first level of Next of Kin is the spouse and/or the child of the person.  The surrogate for emergency health care decisions can also be a Power of Attorney who is given the right to make health care decisions.  Sometimes, a person may choose to give this power to a doctor who works regularly with them and is trusted to not only make decisions that reflect their desires, but also have an understanding of what decisions will mean.  In a surrogate situation, the decision-maker must be able to make the decision that they believe the incapacitated person would have made for themselves regardless of the surrogate’s personal views or their own desires.   This can be a difficult situation to be in, so, if you are assigning someone specific to make this decision, make sure they are someone who knows you well and can also make decisions that reflect your own desires, even in high pressure situations.  

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What is a Guardianship in Illinois?

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