When Life Support Decisions Are Made by a Surrogate

advance directive, Health Care Surrogate Act, Illinois estate planning attorneys, life support, life support decisions, life-sustaining treatment, living willAccidents, sudden illnesses, lifelong health struggles—these things happen. And when they do, it is easier for you and for your loved ones if you have filled out an advance directive (or living will) outlining your wishes regarding life support. But not everyone chooses to make that decision in advance.

Illinois provides for this contingency in the Health Care Surrogate Act. The law only applies to patients who are unable to make a decision or who have specific conditions. It does not apply if the patient has an “operative and unrevoked” living will, an “operative and unrevoked” declaration for mental health treatment, or an authorized agent under a power of attorney. However, if the patient’s condition does not fall within the terms of the living will, declaration, or power of attorney, the Surrogate Act does apply.

What is a Qualifying Condition?

A patient has a qualifying condition if the attending doctor and at least one other doctor certify the presence of at least one of the following:

  • Terminal condition – an illness or injury for which from which recovery is unlikely and death is imminent. Life-sustaining treatment would only prolong the death.

  • Permanent unconsciousness – medical professionals are certain that the condition will last permanently and will not improve, and that there is no thought or awareness of self and environment. Life-sustaining treatment may only provide slight benefits.

  • Irreversible or incurable condition – a condition that will cause the patient’s death regardless of any life-sustaining treatment. The condition causes severe pain.

Who Will be the Surrogate?

If the patient cannot make a decision or has a condition that qualifies, a decision can be made on the patient’s behalf to forego life-sustaining treatment. In that case, a surrogate decision-maker will decide whether or not to continue life support. He or she will express that decision to the attending physician and one adult witness (someone who is at least 18 years old). The attending physician must document this decision, as well as the discussion before the decision, in the patient’s medical record, which must then be signed by the adult witness.

An attending physician does not need a court order to determine the availability of surrogate decision-makers. He or she need only make a reasonable inquiry. However, the law does prioritize which of the available surrogates should make the decision about forgoing life-sustaining treatment. If the patient has a “guardian of the person” (a court-appointed representative of a minor or disabled adult), then the guardian has the authority to make life support decisions. Otherwise, this authority falls to:

  • The spouse;

  • A child who is not a minor;

  • Parents;

  • Adult siblings;

  • Grandchildren who are not minors;

  • Close friends; or

  • The estate’s guardians.

Our Illinois estate planning attorneys understand that deciding whether to forego life support is extremely difficult, especially when that decision falls to a loved one. That is why we recommend planning in advance. We can help you create a living will or appoint a power of attorney. Contact us today for a consultation. We can assist those in the Naperville area.