For people with special needs and their families, the Illinois Health Care Surrogate Act provides much-needed peace of mind about making medical decisions if they have not yet started the future planning process. The Health Care Surrogate Act allows family members or friends to make medical decisions in an emergency or serious health situation when a person with special needs cannot make medical decisions for himself and if no relevant power of attorney or similar is in effect.
Under the Act, when people with special needs cannot make and communicate medical care treatment decisions to doctors and caregivers, family members or friends may act as “surrogate decision makers” if certain conditions are met. The person needing medical treatment must “lack decisional capacity”. The Act defines decisional capacity as “the ability to understand and appreciate the nature and consequences of a decision regarding medical treatment or forgoing life-sustaining treatment and the ability to reach and communicate an informed decision in the matter as determined by the attending physician.” Health Care Surrogate Act, Section 10.
Further, the person needing medical treatment must not have a signed, valid power of attorney for health care, living will declaration, mental health treatment preference declaration, or advance directive that applies to the specific medical condition for which he needs treatment. Health Care Surrogate Act, Section 15. The law permits family members to make decisions about medical conditions outside the scope of existing powers of attorney or similar.
The Heath Care Surrogate Act does allow family or friends to make decisions about end of life treatment. They may choose to forgo “life sustaining treatment” for the person with special needs if the above requirements are met and the person has a “qualifying condition”. Health Care Surrogate Act, Sections 10, 15. The patient must be terminally ill, permanently, unconscious, or have an incurable or irreversible medical condition. For the incurable or irreversible medical condition, there must be no reasonable prospect of cure or recovery, it will ultimately cause the patient’s death even if life-sustaining treatment is initiated or continued, it imposes severe pain or otherwise imposes an inhumane burden on the patient, and initiating or continuing life-sustaining treatment would provide only minimal medical benefit. Id.
Doctors caring for the person with special needs initially assess whether the person lacks decisional capacity and whether a decision about care must be made. Then they try to determine whether a power of attorney or similar exists, and if not, they seek a surrogate decision maker. Health Care Surrogate Act, Section 25. The surrogate decision maker, in making choices about medical care, must choose what he or she thinks the person with special needs would want under the circumstances. Health Care Surrogate Act, Section 20.
Only certain people may act as surrogate decision makers in an order of priority. If more than one person is at the same priority level, then those people must agree about the decision. If they do not agree, the majority rules, or they may seek a court order. The order of priority is:
- A guardian of the person appointed by the court
- Spouse
- Adult sons or daughters
- Parents
- Adult brothers or sisters
- Grandchildren
- Close friends
- A guardian of the estate appointed by the court.
Health Care Surrogate Act, Section 25(a).
Rubin Law is the only law firm in Illinois exclusively limited to providing compassionate special needs legal and future planning to guide our fellow Illinois families of children and adults with intellectual disabilities, developmental disabilities, or mental illness down the road to peace of mind. For more information, email us at email@rubinlaw.com or call 866-TO-RUBIN.
