Advanced Health Directives and the Healthcare Surrogate Act

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Our firm is always stressing the need for Healthcare Powers of Attorney and Living Wills which are examples of healthcare directives.   Remember, that the Healthcare Power of Attorney is a document that names an agent to make healthcare decisions for you should you lack capacity to make those choices.  It not only pertains to decisions concerning life sustaining treatment if death is imminent, but also pertains to those situations where death is not imminent.

By contrast, the Living Will is a document which is restricted to those situations when death is imminent.  It is basically a written pronouncement by you that you do not want life sustaining measures taken if those procedures only delay the dying process. Unlike the Power of Attorney for Healthcare, an agent is not appointed and the health provider must continue to administer food and water.

But what if you have neither  a Power of Attorney for Healthcare nor a Living Will, your death is imminent and you lack the capacity to make medical treatment and life sustaining decisions? This is when the Illinois Healthcare Surrogate Act will apply. The Act generally allows for family members, friends, guardians and other named persons to make these type of decisions.

The order of priority of who will be the surrogate decision maker is  as follows:

  1. The patient’s legally appointed guardian of the person;
  2. The patient’s spouse;
  3. Any adult son or daughter of the patient;
  4. Either parent of  the patient;
  5. Any adult brother or sister of the patient;
  6. Any grandchild of the patient;
  7. A close friend of the patient;
  8. the patient’s legally appointed guardian of the estate.

Upon the identification of a surrogate decision maker,  that person legally may make decisions for the patient and the physician under law can follow through with those decisions.

Finally, the surrogate decision maker must make those choices the he or she believes the patient would choose if he or she had decisional capacity. Furthermore, when making these decisions,the surrogate decision maker must keep in mind the patient’s personal, religious and moral values.