In this article...

In this article we discuss questions such as: Who can make medical decisions for me if I become incapacitated?, What if I do not have a Power of Attorney for Health Care?, and What is a health care surrogate?

In this article we discuss questions such as:

Who can make medical decisions for me if I become incapacitated?  

What if I do not have a Power of Attorney for Health Care?

What is a health care surrogate?

This article will discuss the Illinois Health Care Surrogate Act, the term “decisional capacity” and advance directives including living will, power of attorney for healthcare, POLST and DNR.

Health Care Surrogate Act  755 Ilcs 40/

The Health Care Surrogate Act is an Illinois law that enables family members, friends, or guardians to make life-sustaining treatment and medical treatment decisions for people who lack the ability to make and communicate decisions about medical care themselves. The law directs a medical provider to first determine if a person has an advance directive and if there is none, to look to the patient’s guardian or family for life-sustaining treatment and medical treatment decisions.  

The purpose of the act is “to define the circumstances under which private decisions by patients with decisional capacity and by surrogate decision makers on behalf of patients lacking decisional capacity to make medical treatment decisions or to terminate life-sustaining treatment and will substantially reduce the associated emotional distress for involved parties.”  755 ILCS 40/(b).

“Decisional Capacity”

The Health Care Surrogate Act defines “decisional capacity” as the ability to understand and appreciate the nature and consequences of a decision regarding medical treatment or forgoing life-sustaining treatment and the ability to reach and communicate an informed decision in the matter as determined by the attending physician.  755 ILCS 40/10.

The Illinois legislature recognizes that all persons have a fundamental right to make decisions relating to their own medical treatment.  However, if the patient has failed to provide their “wishes” in an advance directive, then a selection as to who will make those decisions on behalf of the patient arises when the patient is unable to make the decision for themselves.

First, the physician must determine whether the patient no longer has decisional capacity.  In order for the physician to make this determination the patient must have a “qualifying condition”.  The qualifying conditions include (a) terminal condition; (b) permanent unconsciousness”; and (c) incurable or irreversible condition.  755 ILCS 40/10

It is only after the physician makes the determination that a qualifying condition exists, that the surrogate decision maker may consider whether to forgo life-sustaining treatment.  When deciding, the surrogate shall weigh the burdens on the patient of initiating or continuing life-sustaining treatment against the benefit of that treatment.  

Advance Healthcare Directive

The medical provider must next determine whether the patient has an advance directive document in place.  An advance directive is a legal document in which a person specifies what actions should be taken for their medical treatment including any life-sustaining medical treatment.   If a person is no longer able to make decisions for themselves and it is determined that they lack “decisional capacity”, the healthcare providers look to advance directives for guidance.  

Illinois recognizes the following documents as “advance directives”, a living will, power of attorney for healthcare, POLST, and a DNR.  A person will sign a “living will” document to declare whether they want life-sustaining medical treatment if they become incapacitated and are near death.  The power of attorney for healthcare is a document signed by a person to declare an “agent” or person who will step into their shoes is they become incapacitated and are unable to make decisions for themselves.  A “practitioner order for life-sustaining treatment” (POLST) form is signed by a patient, a witness and the physician which directs the preferences of the patient.  The “do not resuscitate” (DNR) is like the POLST but less instructive.

Unfortunately, there are many instances when a patient has failed to name an agent under a Durable Power of Attorney for Health Care or any other form of “directive” or document.  To assist families in these situations, where there is an immediate need for decision making, the Health Care Surrogate Act provides the needed guidance.  The medical provider can look to the statute and determine who should be the decision maker.  

Who Should Be Named Surrogate?

Under the statute, 755 ILCS 40, section 25 provides that “the health care provider must make a reasonable inquiry as to the availability and authority of a health care agent”.  When no health care agent is authorized and available, the health care provider must make a reasonable inquiry as to the availability of possible surrogates.  A surrogate is a person chosen as a substitute for the patient.  To assist both the health care providers and the family and friends of the patient, the Illinois legislature provided a specific list of persons who should be surrogates and prioritized them in the statute:

Possible surrogates in order of priority:

  1. The patient’s guardian of the person.
  1. The patient’s spouse.
  1. Any adult son or daughter of the patient.
  1. Either parent of the patient’
  1. Any adult brother or sister of the patient
  1. Any adult grandchild of the patient.
  1. A close friend of the patient
  1. The patient’s guardian of the estate
  1. The patient’s temporary custodian appointed under subsection (2) under Juvenile Court Act.                    

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