© 2017 by Joan E. Emery
Your friend Mark told you he signed a health care power of attorney and a living will as part of his estate plan. In my last blog post, I discussed various Illinois health care advance directives, including health care powers of attorney, living wills, declarations for mental health treatment, and DNR/POLST forms. You wonder, What if I can’t make health care decisions and I don’t have health care advance directives?
Illinois law provides two alternative methods for making health care decisions for someone who has no health care advance directives which address the health care decision(s) which must be made. The first alternative is the Illinois Health Care Surrogate Act (“Surrogate Act”). The second alternative is a court-appointed guardian of the person. Interestingly, these two alternatives overlap to some degree.
Both the Surrogate Act and a court supervised guardianship of the person can provide a way to make health care decisions for someone who does not have health care advance directives and who cannot make those decisions for himself or herself. In this and the next two blog posts, I will focus on the Surrogate Act and court supervised guardianship of the person.
The Surrogate Act, 755 ILCS 40/1 et. seq., was adopted in 1991. As stated in the findings of the Surrogate Act, one of the reasons the Surrogate Act was adopted was as a response to various court cases which resulted in protracted legal battles regarding the termination of life support measures. 755 ILCS 40/5(a). The purpose of the Surrogate Act is described as “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 may be made without judicial involvement of any kind.” [emphasis added] 755 ILCS 40/5(b).
The Surrogate Act includes a list of definitions, a description of the scope of the Surrogate Act, a summary of decisions which may be made under the Surrogate Act, a list (in order of priority) of who may act as surrogate decision maker, and other related provisions. The Surrogate Act contains a total of 12 separate sections and is numerous single spaced pages in length – it’s a somewhat complicated statute.
I’ll briefly discuss 3 of the 20 definitions contained in the Surrogate Act. These 3 key definitions are “decisional capacity,” "qualifying condition,” and “surrogate decision maker.” Decisional capacity is defined 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.
A qualifying condition is defined, in part, as “the existence of one or more of the following conditions in a patient certified in writing in the patient’s medical record by the attending physician and by at least one other qualified physician: (1) ‘terminal condition’ [defined in the statute]; (2) ‘permanent unconsciousness’ [defined in the statute]; (3) ‘incurable or irreversible condition’ [defined in the statue].” 755 ILCS 40/10.
A surrogate decision maker is “an adult individual or individuals who (i) have decisional capacity, (ii) are available upon reasonable inquiry, (iii) are willing to make medical treatment decisions on behalf of a patient who lacks decisional capacity, and (iv) are identified by the attending physician in accordance with the provisions of this Act as the…[decision maker(s)].” 755 ILCS 40/10.
In terms of applicability, the Surrogate Act clearly states that it does not apply where the patient has a living will, declaration for mental health treatment, or power of attorney for health care and the patient’s condition falls within the coverage of the living will, declaration for mental health treatment, or power of attorney for health care. 755 ILCS 40/15. The Surrogate Act also refers to a do not resuscitate order, so it seems that the Surrogate Act would not apply to any medical treatment directives contained in a DNR/POLST form executed by the patient.
Since the Surrogate Act is intended to create a non-judicial decision-making process for medical decisions, then the next question is, What medical issues can be decided by a surrogate decision maker? The Surrogate Act divides medical decisions into the following 3 categories: 1) medical decisions by an adult patient with decisional capacity, 2) decisions concerning medical treatment on behalf of a patient without decisional capacity, and 3) decisions whether to forgo life-sustaining treatment on behalf of a patient without decisional capacity.
If an adult patient has decisional capacity, then decisions regarding medical treatment and decisions whether to forgo life-sustaining treatment may be made by the patient. 755 ILCS 40/20(a). If a patient lacks decisional capacity and the patient does not have a qualifying condition, then decisions concerning general medical treatment may be made by the surrogate decision maker(s) in consultation with the attending physician. 755 ILCS 40/20(b-5). If a patient lacks decisional capacity and the patient has a qualifying condition, then decisions concerning whether to forgo life-sustaining treatment may be made by the surrogate decision maker(s) in consultation with the attending physician. 755 ILCS 40/20(b).
You now realize that if you don’t have health care advance directives in place and you can’t make medical decisions for yourself, then family and friends who want to make medical decisions for you must rely on first, on the Surrogate Act, and second, on a court supervised guardianship of the person. The Surrogate Act is a complicated, sometimes difficult, way to make medical decisions. But we haven’t even reached the end of the Surrogate Act. In my next post, I will focus on several other important aspects of the Surrogate Act.
I am an attorney practicing in the Chicago area.