Surrogate may be appointed to make medical treatment decisions
If you do not sign a power of attorney for health care or living will, the Health Care Surrogate Act may allow a certain person, called a "surrogate," to make medical and life sustaining treatment decisions without court involvement.
Under the surrogate decision-making process, your physician will identify a surrogate in the order listed below:
- a court-appointed guardian
- your spouse
- any of your adult children
- either one of your parents
- any of your adult brothers or sisters
- any of your adult grandchildren
- one of your close friends
- a court-appointed guardian of your property
However, before the surrogate decision-making process can be used, two requirements must be satisfied:
- A physician must determine and record in your medical record that you lack decision-making capacity;
- You do not have an applicable living will, declaration for mental health treatment or power of attorney for health care.
If you lack decision-making capacity, then your surrogate may make any medical treatment decision. However, your surrogate may not forgo life-sustaining treatment.
A surrogate may make any treatment decision including life-sustaining treatment decisions when: two physicians agree that you lack decision-making capacity and have at least one of the following: (1) a terminal condition, (2) incurable or irreversible condition or (3) permanent unconsciousness. The law calls any one of these three conditions a "qualifying condition."
The surrogate is required to make medical and life sustaining treatment decisions in accordance with your wishes. If your wishes are not known, then the surrogate may make decisions based upon
No surrogate may make decisions concerning admission to a mental health facility or mental health treatment including psychotropic medication or electroconvulsive therapy. These decisions must be made with court involvement. A surrogate, however, may petition a court to order any of these forms of care.
You should still consider naming an agent under a power of attorney for health care instead of relying on a surrogate. First, your agent can do everything a surrogate can do and much more. Second, with an agent, you reduce the risk that your wishes will not be carried out because the agent will be following your written directions. Third, you may prefer someone other than the surrogate to make these important decisions for you. Finally, you could end up with several children or several brothers and sisters as surrogates who may disagree.
In short, you can reduce the risk of disagreements between them or court challenges by naming your own agent.
Note: This information was prepared as a public service by the Illinois State Bar Association and is a joint project with the Illinois Press Association. Its purpose is to inform citizens of their legal rights and obligations.