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When a loved one is injured and incapacitated, sometimes there is a need for someone to make fast, life or death medical decisions for that person.  The question is- who is entitled to make such important decisions?

For those who have taken the time to craft an estate plan,  Healthcare Powers of Attorney, Living Wills and advanced health care directives describe who is entitled to make decisions, as well as what decisions can be made on behalf of the injured person.  However, issues arise when a person does not have these estate planning documents in place when they are injured and incapacitated.  Right after the injury, loved ones usually have many questions, such as:

  • Who will get to make decisions about my love one’s health care and treatment?
  • What types of decisions can they make?
  • What is the process for following-through on these important decision?

To answer these questions, Illinois has passed the Illinois Healthcare Surrogate Act. The Act sets forth the process for appointing a healthcare surrogate to make medical decisions for a person who is without a valid Living Will or Health Care directive and who lacks decisional capacity. These decisions may include choices about whether to withhold life sustaining treatment.  This can all be done at the hospital with no need for court intervention.

The treating physician first makes the determination that a patient lacks the ability to make decisions about their own healthcare- this is called ‘decisional capacity’.  Next, the physician begins the process of finding a surrogate.  Before seeking out a health care surrogate, the treating physician must make an inquiry as to whether or not the patient has any Powers of Attorney or directives.  This process can include looking through hospital records and searching the personal effects of the patient.  The point is, the burden is on the doctor.  Once the doctor has made the determination that there is no Power of Attorney, there is a hierarchy as to who can act as a surrogate.  The hierarchy is as follows:

  • The guardian of the person
  • The spouse
  • Adult son or daughter
  • Parent
  • Brother or sister
  • Grandchild
  • Close friend; or
  • Guardian of the estate

In order to make decisions regarding life sustaining treatment, the patient must have a “qualifying condition.”  A qualifying condition is a terminal condition, permanent unconsciousness, incurable or irreversible condition.  If a patient lacks decisional capacity, but does not have a qualifying condition, the surrogate is still authorized to make medical decisions and consultations with the treating physicians.

One of the most important aspects of the Illinois Healthcare Surrogate Act is that the treating physician and surrogate are shielded from any liability for the decisions that are made.  However, the treating physician will not be absolved of liability for negligent care.

This might cause you to ask, “With this Act in place, why do I need to spend the time and money making a Will and Health Care directive? Won’t my spouse or siblings just take care of it?”

Planning ahead serves several important purposes. Legally documenting your wishes informs your loved ones and physicians of your preferences. It also give your loved ones a sense of certainty and peace of mind, should something happen to you.

If you do not have a written plan in place, the decision will be left up to the best judgment of the person designated as your surrogate.  While you may know who your surrogate could conceivably be, it is important to remember that the treating physician is required to make a diligent, but not exhaustive, inquiry to find persons capable of acting as the surrogate.  This means that if you are injured and the doctor cannot find your spouse, child, parent, or sibling, it could be a grandchild or close friend making health care decisions for you.  You may not know what their intuition or wishes are.  The best course of action is to have a valid estate plan in place.  It is important to periodically review your Powers of Attorney, directives, and Living Will as the documents change.

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