Illinois Health Care Surrogate Act: Who Decides When There Is No POA

Your father is unconscious in the ICU after a stroke. He never signed a healthcare power of attorney. Three of his adult children are standing at the bedside, and two of them disagree about whether to authorize a risky surgical procedure. The hospital's patient advocate arrives and explains that Illinois law has a specific hierarchy for exactly this situation — and the decision does not belong to all three children equally.

The Illinois Health Care Surrogate Act (755 ILCS 40) is the state's default system for medical decision-making when a patient has not appointed a healthcare agent. It designates who speaks for the patient when no advance directive exists, and its priority order surprises many families.

The Statutory Priority List

When a provider determines that a patient lacks decision-making capacity, no authorized and available agent can act, and reasonable inquiry identifies an available statutory surrogate, the Surrogate Act can apply. The law assigns decision-making authority in this specific order:

1. Guardian of the person — if one has been appointed by the court
2. Spouse or partner in a registered civil union
3. Adult children — any adult son or daughter of the patient
4. Parents
5. Adult siblings
6. Adult grandchildren
7. Close friend — someone who has maintained regular contact and is familiar with the patient's activities, health, and beliefs
8. Guardian of the estate — if one exists but there is no guardian of the person

The highest-ranking available person on this list becomes the surrogate decision-maker. If multiple people share the same priority level (for example, three adult children), they must make reasonable efforts to reach consensus; a majority of available members in that category generally controls. A minority member may still seek guardianship.

What the Surrogate Can and Cannot Do

A surrogate designated under this Act does not have the same broad authority as an agent appointed under a healthcare power of attorney. Key limitations:

Treatment decisions only. The surrogate can consent to or refuse medical treatment on the patient's behalf. They cannot make financial decisions, access bank accounts, sell property, or handle any matter outside of healthcare.

Must follow patient's known wishes. For decisions to forgo life-sustaining treatment, the surrogate must conform as closely as possible to the patient's known wishes. When wishes are unknown, the surrogate applies the best-interest standard rather than substituting an unsupported personal preference.

Best interest standard. When the patient's wishes are unknown, the surrogate must act in the patient's best interest, considering the patient's personal values, the benefits and burdens of treatment, and the patient's dignity.

Withdrawal of life-sustaining treatment. A surrogate can authorize withdrawal of life-sustaining treatment, but the attending physician must confirm that the patient lacks decision-making capacity and that the condition meets specific criteria (terminal illness, permanent unconsciousness, or incurable condition where treatment would impose burdens that outweigh benefits).

Why the Surrogate Act Is a Poor Substitute for a Healthcare POA

The Surrogate Act exists as a safety net, not a planning tool. It has several structural problems that a healthcare power of attorney eliminates:

You do not choose your decision-maker. The priority list is fixed by statute. If your relationship with your spouse is strained, or if one of your adult children is better suited to handle medical crises than the others, the Surrogate Act does not allow you to make that distinction. The statutory order applies regardless of personal dynamics.

Family conflict is common. When multiple people share the same priority level, disagreements can create conflict at the worst possible time. The statute's majority rule may resolve the decision, but a healthcare POA eliminates the dispute over who has priority by naming one person as the primary decision-maker with clear authority.

No post-death authority. A surrogate under the Act does not automatically have authority over post-death decisions like organ donation, autopsy, or disposition of remains. An agent under a healthcare POA can be granted these powers explicitly.

Medical information access. The Surrogate Act gives the surrogate the same right as the patient to receive medical information and records relevant to the decision. Unlike the statutory healthcare POA, it does not let you choose the surrogate in advance.

Court intervention risk. If the surrogate's decisions are disputed by other family members, or if no one on the priority list is available, a court petition for guardianship may be needed — a process that can cost thousands of dollars and take weeks to months.

The Dementia Planning Gap

The Surrogate Act is particularly inadequate for patients with progressive cognitive decline. A person with early-stage Alzheimer's may be competent to sign a healthcare POA today but will lose that capacity within months or years. If they wait until the diagnosis progresses, the window closes — and the Surrogate Act becomes the default.

The problem is that a surrogate who was never explicitly chosen by the patient may not know the patient's specific wishes about feeding tubes, ventilator support, comfort care, or whether to pursue aggressive treatment for secondary infections. Families are left guessing, and that guessing frequently leads to guilt, conflict, and decisions that may not reflect what the patient wanted.

How to Avoid the Surrogate Act

The entire purpose of executing a healthcare power of attorney is to bypass the Surrogate Act's default hierarchy. When you sign a valid healthcare POA:

• You choose exactly who makes your medical decisions
• You can name successor agents if your primary choice is unavailable
• You can specify the scope of authority (including post-death decisions)
• You eliminate the risk of family conflict over who has priority
• You provide HIPAA authorization for your agent to access your records immediately

The Illinois Advance Directive & Living Will Kit includes an agent screening worksheet that walks you through selecting the right healthcare agent — covering emotional resilience, geographic proximity, and willingness to carry out difficult decisions — so you never have to rely on the statutory default.

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