Illinois General Assembly - Illinois Compiled Statutes

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755 ILCS 40/20

(755 ILCS 40/20) (from Ch. 110 1/2, par. 851-20)

Sec. 20.

Private decision making process.

(a) Decisions whether to forgo life-sustaining or any other
form of medical treatment involving an adult patient with
decisional capacity may be made by that adult patient.

(b) Decisions whether to forgo life-sustaining treatment on
behalf of a patient without decisional capacity are lawful, without
resort to the courts or legal process, if the patient has a
qualifying condition and if the decisions are made in accordance
with one of the following paragraphs in this subsection and
otherwise meet the requirements of this Act:

(1) Decisions whether to forgo life-sustaining

treatment on behalf of a minor or an adult patient who lacks decisional capacity may be made by a surrogate decision maker or makers in consultation with the attending physician, in the order or priority provided in Section 25.  A surrogate decision maker shall make decisions for the adult patient conforming as closely as possible to what the patient would have done or intended under the circumstances, taking into account evidence that includes, but is not limited to, the patient's personal, philosophical, religious and moral beliefs and ethical values relative to the purpose of life, sickness, medical procedures, suffering, and death.  Where possible, the surrogate shall determine how the patient would have weighed the burdens and benefits of initiating or continuing life-sustaining treatment against the burdens and benefits of that treatment.  In the event an unrevoked advance directive, such as a living will, a declaration for mental health treatment, or a power of attorney for health care, is no longer valid due to a technical deficiency or is not applicable to the patient's condition, that document may be used as evidence of a patient's wishes.  The absence of a living will, declaration for mental health treatment, or power of attorney for health care shall not give rise to any presumption as to the patient's preferences regarding the initiation or continuation of life-sustaining procedures.  If the adult patient's wishes are unknown and remain unknown after reasonable efforts to discern them or if the patient is a minor, the decision shall be made on the basis of the patient's best interests as determined by the surrogate decision maker.  In determining the patient's best interests, the surrogate shall weigh the burdens on and benefits to the patient of initiating or continuing life-sustaining treatment against the burdens and benefits of that treatment and shall take into account any other information, including the views of family and friends, that the surrogate decision maker believes the patient would have considered if able to act for herself or himself.

(2) Decisions whether to forgo life-sustaining

treatment on behalf of a minor or an adult patient who lacks decisional capacity, but without any surrogate decision maker or guardian being available determined after reasonable inquiry by the health care provider, may be made by a court appointed guardian. A court appointed guardian shall be treated as a surrogate for the purposes of this Act.

(b-5) Decisions concerning medical treatment on behalf of a patient
without decisional capacity are lawful, without resort to the courts or legal
process, if the patient does not have a qualifying condition and if decisions
are made in accordance with one of the following paragraphs in this subsection
and otherwise meet the requirements of this Act:

(1) Decisions concerning medical treatment on behalf

of a minor or adult patient who lacks decisional capacity may be made by a surrogate decision maker or makers in consultation with the attending physician, in the order of priority provided in Section 25 with the exception that decisions to forgo life-sustaining treatment may be made only when a patient has a qualifying condition.  A surrogate decision maker shall make decisions for the patient conforming as closely as possible to what the patient would have done or intended under the circumstances, taking into account evidence that includes, but is not limited to, the patient's personal, philosophical, religious, and moral beliefs and ethical values relative to the purpose of life, sickness, medical procedures, suffering, and death.  In the event an unrevoked advance directive, such as a living will, a declaration for mental health treatment, or a power of attorney for health care, is no longer valid due to a technical deficiency or is not applicable to the patient's condition, that document may be used as evidence of a patient's wishes.  The absence of a living will, declaration for mental health treatment, or power of attorney for health care shall not give rise to any presumption as to the patient's preferences regarding any process.  If the adult patient's wishes are unknown and remain unknown after reasonable efforts to discern them or if the patient is a minor, the decision shall be made on the basis of the patient's best interests as determined by the surrogate decision maker.  In determining the patient's best interests, the surrogate shall weigh the burdens on and benefits to the patient of the treatment against the burdens and benefits of that treatment and shall take into account any other information, including the views of family and friends, that the surrogate decision maker believes the patient would have considered if able to act for herself or himself.

(2) Decisions concerning medical treatment on behalf

of a minor or adult patient who lacks decisional capacity, but without any surrogate decision maker or guardian being available as determined after reasonable inquiry by the health care provider, may be made by a court appointed guardian.  A court appointed guardian shall be treated as a surrogate for the purposes of this Act.

(c) For the purposes of this Act, a patient or surrogate
decision maker is presumed to have decisional capacity in the
absence of actual notice to the contrary without regard to advanced age.
With respect to a patient, a
diagnosis of mental illness or an intellectual disability, of itself, is
not a bar to a determination of decisional capacity.  A
determination that an adult patient lacks decisional capacity shall
be made by the attending physician to a reasonable degree of
medical certainty.  The determination shall be in writing in the
patient's medical record and shall set forth the attending physician's opinion regarding the cause, nature, and duration of
the patient's lack of decisional capacity.  Before implementation
of a decision by a surrogate decision maker to forgo
life-sustaining treatment, at least one other qualified health care practitioner 
must concur in the determination that an adult patient lacks decisional
capacity.  The concurring determination shall be made in writing in
the patient's medical record after personal examination of the
patient.  The attending physician shall inform the patient that it
has been determined that the patient lacks decisional capacity and
that a surrogate decision maker will be making life-sustaining
treatment decisions on behalf of the patient.  Moreover, the
patient shall be informed of the identity of the surrogate decision
maker and any decisions made by that surrogate.  If the person
identified as the surrogate decision maker is not a court appointed
guardian and the patient objects to the statutory surrogate
decision maker or any decision made by that surrogate decision
maker, then the provisions of this Act shall not apply.

(d) A surrogate decision maker acting on behalf of
the patient shall express decisions to forgo life-sustaining
treatment to the attending physician and one adult witness who is
at least 18 years of age.  This decision and the substance of any
known discussion before making the decision shall be documented by the
attending physician in the patient's medical record and signed by
the witness.

(e) The existence of a qualifying condition shall be
documented in writing in the patient's medical record by the
attending physician and shall include its cause and nature, if
known.  The written concurrence of another qualified health care practitioner is
also required.

(f) Once the provisions of this Act are complied with, the
attending physician shall thereafter promptly implement the
decision to forgo life-sustaining treatment on behalf of the
patient unless he or she believes that the surrogate decision maker
is not acting in accordance with his or her responsibilities under
this Act, or is unable to do so for reasons of conscience or other
personal views or beliefs.

(g) In the event of a patient's death as determined by a
physician, all life-sustaining treatment and other medical care is
to be terminated, unless the patient is an organ donor, in which
case appropriate organ donation treatment may be applied or continued
temporarily.

(h) A surrogate decision maker may execute a POLST portable medical orders form to forgo life-sustaining treatment consistent with this Section.

(Source: P.A. 102-140, eff. 1-1-22.)