How the Illinois Health Care Surrogate Act Works

The Illinois Health Care Surrogate Act (755 ILCS 40) lets a ranked list of family members or a close friend make medical decisions for a patient who can no longer decide for themselves and never signed a healthcare power of attorney or living will that covers the situation. It is the state’s default rule for who speaks for the patient, what that person can authorize, and where their authority stops.

When the Act Applies

Two conditions have to overlap before the Act does any work. The patient must lack the ability to make their own medical decisions, and no existing legal document can already cover the situation. A valid healthcare power of attorney, a living will, or a mental health treatment declaration that addresses the current condition will displace the Act entirely.¹

The Act still applies if an advance directive exists but has a technical defect that makes it legally invalid, or if the directive simply does not speak to the condition the patient now has. In those cases, the flawed or inapplicable document can still be used as evidence of what the patient would have wanted, even as a surrogate takes over formal decision-making.²

How Incapacity Is Determined

No surrogate can act until the patient’s attending physician formally determines that the patient lacks the ability to make healthcare decisions. The determination has to be made to a reasonable degree of medical certainty and documented in writing in the medical record, including the cause, nature, and expected duration of the incapacity.²

For routine medical decisions, one physician’s written determination is enough. When the decision involves forgoing life-sustaining treatment, the standard is higher: at least one additional qualified healthcare practitioner has to personally examine the patient and independently confirm in writing that the patient cannot make decisions for themselves.² The attending physician also has to inform the patient that they have been found to lack capacity and that a surrogate will be making decisions on their behalf.

Who Can Serve as Surrogate

Once the physician’s finding is in the chart, the healthcare provider must make a reasonable effort to identify and contact a surrogate, checking personal effects and medical records for family contacts and attempting to reach someone by phone within 24 hours of the incapacity determination.³ The statute sets a strict priority order, from highest to lowest:

Court-appointed guardian of the person
Spouse
Any adult son or daughter
Either parent
Any adult brother or sister
Any adult grandchild
A close friend with a significant personal relationship with the patient
Court-appointed guardian of the estate

A ninth category covers temporary custodians appointed under the Juvenile Court Act in specific circumstances.³ A person at any level only qualifies if they are “available,” meaning they can be located, contacted, and are willing to serve. Someone who refuses, cannot be reached, or lacks capacity themselves is treated as unavailable, and the provider moves to the next person on the list.⁴

The close-friend category matters for patients estranged from family or whose closest confidant is not a blood relative. The friend does not need formal documentation of the relationship; the attending physician identifies the surrogate based on available information.

When several people share the same priority level, such as three adult children, they are expected to reach consensus. If they cannot, the majority rules, and the minority’s recourse is to file for guardianship.

What a Surrogate Can Decide

A surrogate’s authority covers consenting to or refusing medical treatments, procedures, and other healthcare interventions. How far that authority reaches depends on whether the patient has what the Act calls a “qualifying condition.”

Without a Qualifying Condition

For an incapacitated patient who does not have a qualifying condition, a surrogate can make general medical treatment decisions, including consenting to surgery, medication changes, or diagnostic procedures. The critical limit: the surrogate cannot authorize forgoing life-sustaining treatment for these patients.² Stopping a ventilator or withdrawing nutrition is off the table unless the patient’s condition deteriorates into one of the categories below.

With a Qualifying Condition

The Act defines three qualifying conditions, each of which must be certified in writing by both the attending physician and at least one other qualified healthcare practitioner:

A terminal condition: an illness or injury with no reasonable chance of cure or recovery, where death is imminent and life-sustaining treatment would only extend the dying process.
Permanent unconsciousness: a state that, to a high degree of medical certainty, will last permanently, where the patient has no awareness of self or environment and treatment provides only minimal medical benefit.
An incurable or irreversible condition: no reasonable prospect of recovery, ultimately fatal, imposing severe pain or an inhumane burden, with treatment providing only minimal benefit.

⁴

When a qualifying condition is certified, the surrogate gains the authority to decide whether to forgo life-sustaining treatment, including ventilators, feeding tubes, and resuscitation, without needing a court order.² A surrogate with that authority can also sign a POLST (Practitioner Orders for Life-Sustaining Treatment) form on the patient’s behalf after a detailed discussion with a healthcare practitioner about the patient’s values, health status, and preferences regarding CPR, ventilators, and nutrition.⁵

How the Surrogate Is Supposed to Decide

Whatever the condition, the surrogate must try to decide the way the patient would have decided. The Act calls this substituted judgment, and it means weighing everything known about the patient’s values, religious beliefs, moral convictions, and any statements the patient made about treatment, suffering, or death. If the patient’s wishes are genuinely unknown after reasonable effort to find them, the surrogate falls back on the patient’s best interests, balancing the burdens and benefits of treatment and considering input from family and friends.²

What the Role Does Not Cover

Surrogate authority is limited to healthcare. It does not reach the patient’s finances, property, or legal matters. Accessing bank accounts to pay medical bills, selling a house, or signing contracts requires a separate financial power of attorney or a court-appointed guardian of the estate. This surprises families who assume medical authority includes everything else.

When People Disagree

Anyone at a higher, lower, or equal priority level can challenge a surrogate’s authority or a specific life-sustaining treatment decision by initiating guardianship proceedings under the Probate Act. Guardianship litigation is the Act’s primary dispute resolution mechanism, with attorney fees and filing costs attached, which is why most families try to work disagreements out informally first.³

The patient keeps a voice even after being found to lack capacity. If the patient objects to the person serving as surrogate or to any decision the surrogate makes, the entire Act stops applying to that patient’s care. The patient does not have to formally prove they have regained full capacity to halt the process.²

A healthcare provider with personal, moral, or religious objections to carrying out a decision to forgo life-sustaining treatment is not forced to comply. They must notify facility administration promptly and help arrange a transfer to another provider or facility willing to honor the surrogate’s instructions.⁶

Surrogates and providers who act in good faith and with due care are shielded from civil liability, criminal prosecution, and professional discipline for consent-based claims. A surrogate is not disqualified or exposed to liability simply because they stand to benefit personally from a decision or would make a different choice for themselves. Provider protection does not extend to medical negligence in actually carrying out the authorized treatment.⁷

When Surrogate Authority Ends

Surrogate authority is not permanent. It terminates when the patient regains decision-making capacity and removes the surrogate, when a court appoints a guardian of the person, or when the patient dies.⁶ There is no formal revocation step for the first scenario; once the patient can decide again, their autonomy returns automatically.

A previously unknown advance directive can also end the role. If a valid healthcare power of attorney surfaces after a surrogate has already been acting, the power of attorney takes precedence and the Act gives way.¹

Access to Medical Records

A surrogate needs medical information to make informed treatment decisions, and HIPAA accommodates that. Federal privacy law treats a person recognized under state law as having authority over healthcare decisions as the patient’s “personal representative,” with the same right to access protected health information as the patient. Because the Health Care Surrogate Act is exactly the kind of state law HIPAA defers to, a properly identified surrogate can access the patient’s medical records without a separate authorization form.⁸

A provider who refuses to share information with a recognized surrogate is violating HIPAA, not complying with it. The one exception: if the provider reasonably believes the surrogate has subjected the patient to abuse, neglect, or domestic violence, they can withhold information and decline to treat the person as a personal representative.⁸

1
Illinois General Assembly. Illinois Compiled Statutes 755 ILCS 40/15 – Applicability
2
Illinois General Assembly. Illinois Compiled Statutes 755 ILCS 40/20 – Private Decision Making Process
3
Illinois General Assembly. Illinois Compiled Statutes 755 ILCS 40/25 – Surrogate Decision Making
4
Illinois General Assembly. Illinois Compiled Statutes 755 ILCS 40/10 – Definitions
5
Illinois Department of Public Health. POLST Guidance for Health Care Providers and Professionals
6
Illinois General Assembly. Illinois Compiled Statutes 755 ILCS 40 – Health Care Surrogate Act
7
Illinois General Assembly. Illinois Compiled Statutes 755 ILCS 40/30 – Reliance on Authority of Surrogate Decision Maker
8
NCBI Bookshelf. HIPAA and Caregivers’ Access to Information