Health Care Surrogate

Some people have health care powers of attorney which appoint an agent who can make health care decisions for them when they are mentally disabled. They may also have living wills which provide they shall not be kept alive by death delaying medical procedures when they have what would otherwise be a terminal and irreversible condition. Most people, however, do not have these things. If they become mentally disabled who will make decisions concerning their health care? Who can consent to an operation? A court appointed guardian could, but it takes time and money to get one appointed. The Illinois Health Care Surrogate Act provides that certain persons can make medical decisions for those who lack decisional capacity as determined by a physician. The order of priority of those authorized to act is:

1) guardian of the person, if any;

2) spouse;

3) adult son or daughter;

4) either parent;

5) adult brother or sister;

6) adult grandchild;

7) close friend; or

8) guardian of the estate.

If there is more than one person with equal authority to decide, decisions are to be made by the majority, unless a petition for guardianship is filed by the minority. Medical professionals who act in good faith on the decisions of the surrogate are protected by the court from liability for acting on the surrogate's directions.

The attending physician must first determine that the patient lacks decisional capacity and made a good faith determination of whether there is a controlling power of attorney or living will and, if not, who and where the likely surrogates are. Once a surrogate has been identified the surrogate must act only after consultation with the physician and must act as the patient would have acted as best that can be determined. If it cannot be determined how the patient would have decided or the patient is a minor, the surrogate must act in accordance with the patient's best interests.

If the surrogate is going to make a decision to forego life sustaining treatment a second physician must determine the patient lacks decisional capacity. The surrogate must express the decision to both the attending physician and a witness who must both sign documentation evidencing the decision and any discussion concerning it.

The attending physician must inform the patient that it has been determined the patient lacks decisional capacity and who the surrogate is and of any decisions made by the surrogate. If the patient, regardless of decisional capacity, objects to the surrogate or any of the surrogate's decisions then the surrogate has no authority or no authority to make the particular decision objected to - unless the surrogate is a court appointed guardian.

The act says the surrogate has the same right as the patient to receive medical records and information and consent to this disclosure.

Any disputes that arise can be determined by a court in a guardianship proceeding.

Despite this legislation there are still good reasons to have a power of attorney or living will. First, the power of attorney lets you choose the person who will make the decisions. Second, both let you state your wishes.

Donald M. Thompson * 55 W. Monroe #3950; Chicago, IL 60603
Ph: 312-782-0844 * Fax: 312-201-1436 * Email: donthompsonlaw@sbcglobal.net