When an individual has not created a power of attorney for health care or a living will, the Health Care Surrogate Act may allow a "surrogate" to make medical and life sustaining treatment decisions without court involvement.

Under the surrogate decision-making process, a physician will identify a surrogate in the order listed below:

1. A court-appointed guardian
2. A spouse
3. Any adult children
4. Either parent
5. Any adult siblings
6. Any adult grandchildren
7. A close friend
8. A court-appointed guardian of property

However, before the surrogate decision-making process can be used, two requirements must be satisfied:

1. A physician must determine and record in the patient’s medical record that he or she lacks decision-making capacity
2. The patient does not have an applicable living will, declaration for mental health treatment or power of attorney for health care

A surrogate may only make any treatment decision including life-sustaining treatment decisions when: two physicians agree that the patient lacks decision-making capacity and at least one of the following situations apply:

• The condition is terminal
• The condition is incurable or irreversible
• The patient is in a state of 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 the patient’s wishes.  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.

One should consider naming an agent under a power of attorney for health care instead of relying on a surrogate to avoid confusion and conflict. Agents have more power than a surrogate and having a designated agent increases the chance that the patient’s wishes are honored. Desginating an agent can reduce the potential for conflict that may arise between several surrogates who may disagree on the best course of action.

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.