When a loved one cannot make medical choices, time feels tight and emotions run high. Families want clear answers about who can speak for the patient and what the law actually allows.
At Woods & Bates, P.C., we focus our work on planning and protection for Illinois families, and that includes guiding you through health care decision rules. Our goal here is simple: explain the Illinois Health Care Surrogate Act and the order of priority for choosing a surrogate decision maker.
Overview of the Illinois Health Care Surrogate Act
The Health Care Surrogate Act, 755 ILCS 40, sets out how a surrogate can be identified when a patient cannot make or communicate medical decisions. It gives hospitals and families a path to move forward without running to court for every decision. That structure often brings relief in a tough moment by laying out who can decide and when.
The Act applies when a person lacks decisional capacity and does not have an operative health care power of attorney or living will that covers the situation at hand. If a document exists but does not match the medical issue, the Act can still apply for decisions outside that document’s scope (755 ILCS 40/15). The Act also covers routine medical decisions for patients without decisional capacity, and it allows end-of-life decisions only when a qualifying condition is present (755 ILCS 40/20).
Before a surrogate gets involved, the healthcare team must check for a valid health care agent first, then look for possible surrogates if no agent is available. This inquiry must be documented after the provider finds the patient lacks decisional capacity (755 ILCS 40/25).
Defining ‘Decisional Capacity’ and ‘Qualifying Condition’
Two ideas drive when the Act comes into play: decisional capacity and the presence of a qualifying condition. Both are medical determinations that must be recorded in the chart with the required confirmations. These definitions protect patient autonomy and set the boundaries for surrogate choices.
Decisional Capacity
Decisional capacity means the patient can understand the nature and consequences of a medical choice, then reach and communicate an informed decision, as determined by the attending physician (755 ILCS 40/10). This is not a label tied to age or diagnosis by itself; it is a clinical call made for the decision at hand.
If the attending physician finds that an adult lacks decisional capacity, that finding must be written in the medical record. Before a surrogate decision to stop life-sustaining treatment is implemented, a second qualified practitioner must concur in writing after examining the patient (755 ILCS 40/20).
With capacity explained, the next question is whether the patient’s condition allows a surrogate to forgo life-sustaining treatment.
Qualifying Condition
A qualifying condition is required before a surrogate can choose to forgo life-sustaining treatment (755 ILCS 40/20). The Act lists three qualifying conditions, each with its own criteria.
Here are the three qualifying conditions noted in 755 ILCS 40/10:
- Terminal condition: no reasonable prospect of cure, death is imminent, and treatment would only prolong dying.
- Permanent unconsciousness: no awareness and no improvement to a high degree of medical certainty, and only minimal benefit from treatment.
- Incurable or irreversible condition: no prospect of cure, death still expected even with treatment, severe pain or inhumane burden on the patient, and treatment gives only minimal benefit.
For an incurable or irreversible condition, the law expects all four prongs to be present: lack of cure, inevitability of death despite treatment, severe pain or inhumane burden, and minimal benefit from life-sustaining treatment. The attending physician and at least one other qualified physician must certify a qualifying condition in writing before life-sustaining treatment can be forgone by a surrogate (755 ILCS 40/20).
The Order of Priority for Surrogate Decision-Makers in Illinois
The Act uses a priority list that helps providers identify who can speak for a patient without decisional capacity when no health care agent is authorized and available (755 ILCS 40/25). Providers must make a reasonable inquiry into the availability of a health care agent first, then potential surrogates. This inquiry can include checking personal effects or medical records, and attempting contact within 24 hours of the capacity finding.
This order applies only when the patient lacks decisional capacity and there is no authorized health care agent. Once a surrogate is identified, providers can rely on that person unless someone of higher priority appears and is available to serve.
Priority List of Surrogate Decision-Makers
The law sets the following priority order, which the attending physician uses when identifying a surrogate for a patient who lacks decisional capacity, as listed in 755 ILCS 40/25:
- Patient’s guardian of the person.
- Patient’s spouse.
- Any adult son or daughter of the patient.
- Either parent of the patient.
- Any adult brother or sister of the patient.
- Any adult grandchild of the patient.
- A close friend of the patient, as defined in the Act.
- The patient’s guardian of the estate.
- The patient’s temporary custodian under Section 2-10 of the Juvenile Court Act of 1987, if a court order grants that authority.
Providers can rely on a listed surrogate if they reasonably believe a higher-ranking person is not available and no health care agent is available.
| Priority Rank | Who Qualifies | Notes |
| 1 | Guardian of the person | Court-appointed, highest priority |
| 2 | Spouse | Legally married at the time |
| 3 | Adult child | Any adult son or daughter |
| 4 | Parent | Either parent with intact parental rights |
| 5 | Adult sibling | Any adult brother or sister |
| 6 | Adult grandchild | Any adult grandchild |
| 7 | Close friend | Affidavit required under the Act |
| 8 | Guardian of the estate | Court-appointed for finances |
| 9 | Temporary custodian | Only if authorized under Juvenile Court Act |
This table is a quick overview, and it does not replace the specific steps and documentation required by 755 ILCS 40/25.
Important Considerations When Multiple Surrogates Share the Same Priority
When multiple people share the same priority, the Act expects them to make reasonable efforts to reach a joint plan (755 ILCS 40/25(a)). Providers need to know who is deciding, and a single voice helps care teams carry out the plan.
If there is a split, either the majority of available surrogates at that level controls or the parent with custodial rights in a parent dispute. A person who disagrees can file a guardianship case, and no provider is required to seek a guardian to break the tie.
Challenging Surrogate Decisions and Priority
An individual with a higher priority can replace a previously recognized surrogate once they become available and willing to serve (755 ILCS 40/25(d)). That change should be recorded in the chart to keep the care team aligned.
Anyone in a higher, lower, or same priority level, or a health care provider, can challenge the priority or a life-sustaining treatment decision by filing for guardianship under the Probate Act of 1975. In real life, quick legal help can steady the process and prevent unnecessary delay in care.
Responsibilities and Rights of a Surrogate Decision Maker
Surrogates are instructed to decide based on what the patient would have wanted, using the patient’s values, beliefs, and known preferences as guideposts (755 ILCS 40/20). This includes weighing the burdens and benefits of treatment, not only medical facts but also the patient’s view of dignity and suffering.
If the patient’s wishes are unknown after reasonable efforts to learn them, the surrogate must act in the patient’s best interests, again weighing burdens and benefits of the treatment at issue (755 ILCS 40/20). Providers should document the reasoning, and surrogates should speak openly with the care team and family.
Here is a quick checklist for surrogates under the Act:
- Ask the attending physician for a clear explanation of the diagnosis, prognosis, and options.
- Think through the patient’s beliefs, prior statements, and goals, then apply those to the decision.
- Review any past directives, even if not strictly applicable, since they can show the patient’s wishes.
- Keep notes on discussions and decisions, which helps if questions arise later.
Surrogates hold important rights to do their job. They have the same right as the patient to receive medical information and records and consent to disclosure, which allows informed choices that match the patient’s values (755 ILCS 40/25(e)). Their authority continues until the patient regains capacity and removes them, a guardian of the person is appointed, or the patient dies (755 ILCS 40/25(f)).
One more point often missed is when a provider cannot follow a decision for reasons of conscience or facility policy, the provider or facility must help with a timely transfer to a provider or facility that will follow the patient’s or surrogate’s direction (755 ILCS 40/35). This safeguard keeps the focus on the patient’s plan.
Need Guidance on Surrogate Decision Making? Contact Woods & Bates, P.C.
At Woods & Bates, P.C., we care deeply about giving Illinois families clear, workable plans for medical decisions and long-term care. If you need help sorting out rights and responsibilities under the Health Care Surrogate Act, or want to create a health care power of attorney to avoid guesswork later, reach out. Call 217-735-1234 or visit our contact page to connect with our firm. We are committed to practical guidance that protects your loved one and supports your family during hard moments.