Illinois has created a new law 755 ILCS 40/10 which amended The Health Care Surrogate Act by changing Sections 10, 20, and 65. This act originally set the guidelines for deciding whether to forgo life sustaining or any other form of medical treatment that involves an adult patient without decision making capacity. The new law does the same thing just with the few changes. In the new law, legal terms of art like a “qualified health care practitioner” and “Physician” were added to more broadly define the health care actors allowed assess the decision-making capacity of an individual. Both the new and the old law explain how the surrogate decision maker, which is an adult who is willing to make medical treatment decisions on behalf of a patient who lacks decision making capacity, must make decisions for the adult patient conforming as closely as possible to what the patient would have done intended under the circumstances. These laws explain that the absence of a living will or POA shall not give rise to any presumptions, the decisions shall be made on the basis of the patient’s best interests as determined by the surrogate decision maker. When it comes to an adult patient who is diagnosed with a mental illness or an intellectual disability, both the new and the old law set forth the same provisions; a diagnosis of mental illness or an intellectual disability of itself is not a bar to a determination of decisional capacity. Both laws hold the rule that, if the person identified as the surrogate decision maker is not a court appointed guardian and the adult patient objects to any decision that the surrogate decisions maker made, the act will not apply.

The new law requires that at least one other health care practitioner must concur in the determination that an adult patient lacks decisional capacity before implementation of a decision by a surrogate decision maker to forgo life sustaining treatment. The new law also includes provisions about POLST, removing certain requirements and adding certain requirements. These new provisions make it somewhat harder for an individual to nullify the decisions that an adult patient made when they were in decision making capacity.

Here at the Law Office of Jonathan W. Cole we can help avoid these problems with a document called a POA. With this one document an agent can appointed to make healthcare decisions on the behalf of a principal in the event that the principal is unable to make these decisions himself or herself, without involving the court. Please contact us at (708) 529-7794 for assistance with your Power of Attorney for Healthcare today!

Jonathan Cole

(708) 529-7794