Who Makes Medical Decisions Without a Power of Attorney in Illinois?

In Illinois, if you don’t have a Power of Attorney (POA) for healthcare, state law appoints a surrogate decision-maker from your closest family members under the Illinois Healthcare Surrogate Act. The legal hierarchy is:

1. Spouse
2. Adult children (majority rules if multiple)
3. Parents
4. Adult siblings
5. Adult grandchildren
6. Close friends (with proof of relationship)

If no surrogate is available, a court-appointed guardian will decide.

Illinois Law on Medical Decision-Making Without a POA

The Illinois Healthcare Surrogate Act (755 ILCS 40/25) allows family members or close friends to make medical choices for patients who are unable to communicate and lack a POA or living will. This applies to decisions like:

• Surgery, chemotherapy, or life support.
• Hospice care or DNR (Do Not Resuscitate) orders.
• Mental health treatment.

Key requirements:

• Two doctors must confirm incapacity.
• The surrogate must act in the patient’s best interests or follow known wishes (e.g., religious beliefs).
• Healthcare providers must document the surrogate’s authority.

Example:
If a patient with dementia needs emergency surgery, their spouse can consent. If unmarried, the decision falls to their adult children.

Who Qualifies as a Surrogate? Legal Hierarchy in Detail

1. Spouse

A legally married spouse has first priority unless they’re divorced, separated, or a court restricts their rights.

Exception: Same-sex spouses and common-law marriages (if recognized in Illinois) hold equal rights.

2. Adult Children (21+)

If there’s no spouse, all adult children must agree on care decisions. If they disagree, healthcare providers may:

• Delay treatment until consensus.
• Seek court intervention.

Case Example:
In a 2021 Cook County case (In re Guardianship of L.M.), three siblings disagreed on whether to withdraw their mother’s life support. The court appointed a neutral guardian to decide.

3. Parents

Parents of unmarried adult patients can make decisions unless deemed unfit (e.g., history of abuse).

4. Siblings

If no parents are available, a majority of adult siblings must agree.

5. Close Friends

A close friend can act if they’ve had regular contact with the patient and can prove their relationship (e.g., affidavits from others).

Related article:
Lasting Power of Attorney vs. Enduring Power of Attorney

When Courts Intervene: Guardianship

If no surrogate exists or family members dispute decisions, a court will appoint a guardian. The process includes:

1. Petition: A relative, friend, or hospital files a petition.
2. Hearing: A judge reviews evidence of incapacity and selects a guardian.
3. Ongoing oversight: Guardians must report decisions to the court annually.

Drawbacks:

• Time-consuming (can take weeks).
• Expensive (legal fees average 
• 2,500–5,000 in Illinois).
• Loss of privacy (court records are public).

Risks of Relying on Illinois’ Default Hierarchy

1. Delayed Care: Family disputes can postpone critical decisions.
2. Unwanted Treatments: Surrogates might choose care contrary to your values (e.g., life support for a terminal patient who wanted hospice).
3. Legal Battles: Distant relatives or estranged family members could challenge decisions.

Quote from a Legal Expert:
“Without a Healthcare POA, you’re handing your care to people the law chooses—not necessarily those you trust. It’s a gamble with your health.”
— Emily Carter, Chicago Elder Law Attorney (Cited in Illinois State Bar Journal, 2023).

How Healthcare Providers Handle Surrogate Disputes

Hospitals and doctors follow strict protocols under Illinois law:

1. Identify the highest-ranking surrogate willing to act.
2. Document the hierarchy in medical records (e.g., “Patient’s daughter, Jane Doe, is the decision-maker per HSA”).
3. Escalate to ethics committees if surrogates demand non-beneficial care (e.g., futile treatment).
4. Petition for guardianship if no surrogate steps forward.

Real-Life Scenario:
In 2019, a Springfield hospital refused a son’s request to continue life support for his brain-dead father, citing the Healthcare Surrogate Act and the father’s prior statements against prolonged care. The son sued but lost in court.

How to Protect Yourself Without a POA

While creating a Healthcare POA is ideal, take these steps if you don’t have one:

1. Discuss Wishes With Family

Clearly share your preferences with loved ones:

• “I don’t want a feeding tube if I’m in a permanent coma.”
• “I’d prefer to die at home with palliative care.”

2. Write an Informal “Advance Directive”

Though not legally binding, a handwritten note can guide surrogates. Example:
“If I can’t recover, let me pass naturally. Signed, [Your Name].”

3. Appoint a “Mental Health Treatment Preference Declaration”

Under Illinois law (755 ILCS 43/), you can name someone to decide on psychiatric care, even without a POA.

4. Use Hospital “Surrogate Consent” Forms

Some Illinois hospitals let patients pre-select a surrogate during admissions.

Resources for Illinois Residents

• Illinois Department of Public Health: Advance Directive Toolkit
• Illinois Legal Aid: Free Healthcare POA Forms
• Cook County Probate Court: Guardianship Process

Key Takeaways

• Without a Healthcare POA, Illinois appoints surrogates in a set order: spouse → adult children → parents → siblings.
• Disputes among surrogates can delay care or force court intervention.
• Protect yourself by creating a Healthcare Power of Attorney (5-minute form) or discussing wishes with family.

Bottom Line: Don’t leave your medical care to chance. Even a basic POA ensures someone you trust speaks for you.

Checklist for Illinois Residents

• Talk to family about your healthcare preferences.
• Download a free Illinois Healthcare POA form here.
• Share your POA with your doctor and local hospital.
• Review/update your POA every 3–5 years.