Default Health-Care Surrogate Priority in Illinois
At a glance
| When the default route opens | Attending physician records lack of decisional capacity; provider inquires for agent before surrogate (§§ 20(c), 25(a)). |
|---|---|
| Care or setting covered | Patient under licensed physician/provider care, including hospital or other facility; Act also covers no-qualifying-condition decisions (§§ 10, 15, 20(b-5)). |
| Guardian or appointed agent | Authorized available health care agent first; guardian of person heads surrogate list (§§ 15, 25(a)(1)). |
| Family and partner order | Spouse → adult child → parent → adult sibling → adult grandchild (§ 25(a)(2)–(6)). |
| Friend or other nonfamily person | Close friend with familiarity affidavit; later guardian of estate and authorized temporary custodian (§§ 10, 25(a)(7)–(9)). |
| Decision within one class | Seek consensus; on reported disagreement, majority of available class controls unless minority starts guardianship proceeding (§ 25(a)). |
| Who is available and eligible | Adult with capacity, willing and available; reasonable inquiry includes 24-hour family/agent phone attempt when identified (§§ 10, 25(a)). |
| Decisions limited or excluded | Life-sustaining withdrawal requires qualifying condition, concurring capacity/condition findings, and witnessed expression; patient objection stops non-guardian route (§§ 10, 20(b)–(e)). |
| No surrogate or disputed authority | Higher-rank person may replace; challenge via guardianship; without surrogate, court-appointed guardian route (§§ 20(b)(2), 20(b-5)(2), 25(c)–(d)). |
Requirements one by one
When the default route opens
Under 755 ILCS 40/20(c), the attending physician determines lack of decisional capacity to a reasonable degree of medical certainty and records the cause, nature, and duration. Section 25(a) requires reasonable inquiry for an authorized available health care agent before looking for a surrogate. Section 15 gives an operative directive or authorized agent effect according to its terms when it covers the patient's condition.
Care or setting covered
Section 10 defines a patient by care or treatment from a licensed physician or other health care provider; its provider definition includes facilities and clinicians. Section 20(b-5) permits surrogate treatment decisions for a patient without a qualifying condition, while § 20(b) treats foregoing life-sustaining treatment separately.
Family and partner order
Section 25(a) ranks the guardian of the person first, then spouse, adult children, parents, adult siblings, adult grandchildren, close friend, guardian of the estate, and a temporary custodian with the court authority the statute specifies. The attending physician identifies the surrogate, and the provider may rely on one after a reasonable inquiry finds no higher-priority person available.
Friend or other nonfamily person
Under § 10, a close friend must be at least 18, show special care and concern, and give the attending physician an affidavit stating willingness, regular contact, and facts showing familiarity with the patient's activities, health, and beliefs. This is the friend class in § 25(a)(7).
Decision within one class
Section 25(a) directs equal-rank surrogates to try for consensus. If at least two report a disagreement to the attending physician, a majority of available persons in that class controls unless the minority starts guardianship proceedings.
Who is available and eligible
Under § 10, an unavailable person includes one whose existence is unknown, who cannot be contacted by telephone or mail, or who lacks capacity, refuses the role, or will not choose among treatments. Section 25(a) makes reasonable inquiry concrete: if a family member or agent is identified, a telephone contact attempt must be made within 24 hours after the incapacity determination.
Decisions limited or excluded
Section 20(b-5) allows ordinary medical treatment decisions without a qualifying condition but reserves life-sustaining withdrawal for patients with one. Under §§ 10 and 20(c),(e), the attending physician and another qualified practitioner must make written qualifying-condition findings; another qualified practitioner must concur in incapacity before implementing withdrawal. Section 20(d) requires the surrogate to express the decision to the attending physician and an adult witness. If the patient objects to a non-guardian statutory surrogate or decision, § 20(c) says the Act no longer applies.
No surrogate or disputed authority
Sections 20(b)(2) and 20(b-5)(2) allow a court-appointed guardian to decide when no surrogate or guardian was available after reasonable inquiry. Section 25(c) permits replacement of an unavailable surrogate; subsection (d) lets an available higher-rank person assume authority and sends priority or life-sustaining decision challenges to guardianship proceedings.
What trips people up
The 2026 amendment to § 25(g) requires a facility to give the identified surrogate written information about the determination and designation and to place it in the medical record. A surrogate's authority ends on restored capacity, appointment of a guardian of the person, or death under § 25(f).
Common questions
Does a close friend need a court appointment? Section 25(a)(7) includes a qualifying close friend in the surrogate list; § 10 requires an affidavit with facts showing the relationship.
Can a surrogate decide against life-sustaining treatment for any incapacitated patient? No. Section 20(b-5)(1) confines that choice to a patient with a qualifying condition, as defined and certified under § 10.
Statutes and sources
- 755 ILCS 40/10, /15, /20, and /25. Verbatim official text, direct section links, and access dates appear in the source fields above.
Source links
Every statute quoted above, linked, with the date we checked it.
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