As a result of injury, illness, or side effects, patients may temporarily or permanently lose decision-making abilities. In addition to evaluating the cause and extent of impairment, if there is no applicable advance directive (living will, health care durable power of attorney, or mental health treatment declaration), the medical team should be prepared to identify a decision maker in accordance with the Illinois Health Care Surrogate Act.

The physician must determine whether the patient has a qualifying condition (or QC). This includes terminal illness or injury, permanent unconsciousness, or incurable/irreversible conditions which impose severe pain or inhumane burden and no reasonable prospect of recovery or cure. The presence or absence of a QC makes a difference in physician documentation and the scope of surrogate decision-making. Physician documentation: A physician must document loss of decisional capacity (including its cause, nature, and duration), and whether the patient has a QC. If the condition qualifies, a second physician must personally examine the patient, and document his or her incapacity to decide as well as the QC. Surrogate identification: Reasonable effort must be made to identify who ranks highest on the following list: guardian of the person; spouse; adult son or daughter; parent; adult sibling; adult grandchild; close friend; guardian of the estate. If the highest level includes two or more persons, they must make reasonable efforts to decide by consensus. If they cannot, the decision of a majority applies, unless surrogates in the minority initiate guardianship proceedings. The name, address, and telephone number of the identified surrogate(s) must be recorded. A social worker, chaplain, or other associate should confirm and document unavailability of anyone higher on the list than the recorded individual(s). Surrogate decision making: The extent of surrogate authority depends on whether a QC exists. If the patient's condition qualifies, the surrogate's authority includes decisions to forgo life-sustaining treatment. If the condition does not qualify, the surrogate may make medical decisions except forgoing life-sustaining treatment. In either case, decisions should be properly documented. When a QC exists and the surrogate decides to forgo treatment, conversations must be documented and witnessed in the chart.

Surrogates should understand their role is not to decide as they would for themselves, but to represent patient wishes. The patient's previous conversations or correspondence with family or friends may be instructive. If determining a patient's wishes proves impossible, the surrogate may decide based on what appears to be in the patient's best interests.

Patients without decisional capacity must still be informed of surrogate identity and decisions. The record must reflect whether a patient objects to either. When objections arise, the Surrogacy Act does not apply, and hospital legal counsel should be consulted to initiate guardianship proceedings.

Although advance care planning is on the rise, most patients do not record health care wishes. Therefore, when patients lose decisional capacity, identifying surrogates as provided by Illinois law constitutes an important clinical skill.