SB1411 104TH GENERAL ASSEMBLY

LRB104 07373 JRC 17413 b

104TH GENERAL ASSEMBLY
State of Illinois
2025 and 2026
SB1411

Introduced 1/31/2025, by Sen. Laura Fine

SYNOPSIS AS INTRODUCED:

755 ILCS 40/15	from Ch. 110 1/2, par. 851-15
755 ILCS 40/65

Amends the Health Care Surrogate Act. Provides that if an individual without decisional capacity has an operative and unrevoked living will and the attending physician, in accordance with Section 4 of the Illinois Living Will Act, determines that the individual has a terminal condition and records the condition in the individual's medical record, then the individual's surrogate decision maker, in the order of priority under subsection (a) of Section 25, is authorized to consent to a POLST on behalf of the individual to ensure that the individual's wishes are respected.

A BILL FOR

AN ACT concerning civil law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Health Care Surrogate Act is amended by changing Sections 15 and 65 as follows:

(755 ILCS 40/15) (from Ch. 110 1/2, par. 851-15)

Sec. 15. Applicability. This Act applies to patients who lack decisional capacity or who have a qualifying condition. Except as provided in Section 65, this This Act does not apply to instances in which the patient has an operative and unrevoked living will under the Illinois Living Will Act, an operative and unrevoked declaration for mental health treatment under the Mental Health Treatment Preferences Declaration Act, or an authorized agent under a power of attorney for health care under the Illinois Power of Attorney Act and the patient's condition falls within the coverage of the living will, the declaration for mental health treatment, or the power of attorney for health care. In those instances, the living will, declaration for mental health treatment, or power of attorney for health care, as the case may be, shall be given effect according to its terms. This Act does apply in circumstances in which a patient has a qualifying condition but the patient's condition does not fall within the coverage of the living will, the declaration for mental health treatment, or the power of attorney for health care.

Each health care facility shall maintain any advance directives proffered by the patient or other authorized person, including a do not resuscitate order, a living will, a declaration for mental health treatment, a declaration of a potential surrogate or surrogates should the person become incapacitated or impaired, or a power of attorney for health care, in the patient's medical records. This Act does apply to patients without a qualifying condition. If a patient is an adult with decisional capacity, then the right to refuse medical treatment or life-sustaining treatment does not require the presence of a qualifying condition.

(Source: P.A. 96-448, eff. 1-1-10; 96-492, eff. 8-14-09; 96-1000, eff. 7-2-10.)

(755 ILCS 40/65)

Sec. 65. Department of Public Health Uniform POLST form.

(a) An individual of sound mind and having reached the age of majority or having obtained the status of an emancipated person pursuant to the Emancipation of Minors Act may execute a document (consistent with the Department of Public Health Uniform POLST form described in Section 2310-600 of the Department of Public Health Powers and Duties Law of the Civil Administrative Code of Illinois) directing that resuscitating efforts shall not be implemented. This individual may also revoke the document at will. Such a document may also be executed by a qualified health care practitioner. If more than one practitioner shares responsibility for the treatment and care of an individual, any of the qualified health care practitioners may act under this Section. Notwithstanding the existence of a do-not-resuscitate (DNR) order or Department of Public Health Uniform POLST form, appropriate organ donation treatment may be applied or continued temporarily in the event of the patient's death, in accordance with subsection (g) of Section 20 of this Act, if the patient is an organ donor.

(a-5) Execution of a Department of Public Health Uniform POLST form is voluntary; no person can be required to execute the form. Execution of a POLST form shall not be a requirement for admission to any facility or a precondition to the provision of services by any provider of health care services. A person who has executed a Department of Public Health Uniform POLST form should review the form annually and when the person's condition changes.

(b) Consent to a Department of Public Health Uniform POLST form may be obtained from the individual, or from another person at the individual's direction, or from the individual's legal guardian, agent under a power of attorney for health care, or surrogate decision maker.

(b-5) As used in this Section:

"POLST" means practitioner orders for life-sustaining treatments.

"POLST portable medical orders form" means a medical orders form, including, but not limited to, a Medical Orders for Scope of Treatment (MOST), Medical Orders for Life Sustaining Treatment (MOLST), Physician Orders for Scope of Treatment (POST), or Physician Orders for Life Sustaining Treatment (POLST) form, that is formally authorized by a state or territory within the United States.

(c) Nothing in this Section shall be construed to affect the ability of an individual to include instructions in an advance directive, such as a power of attorney for health care. The uniform form may, but need not, be in the form adopted by the Department of Public Health pursuant to Section 2310-600 of the Department of Public Health Powers and Duties Law (20 ILCS 2310/2310-600). Except as otherwise provided by law, emergency medical service personnel, a health care provider, or a health care facility shall comply with a Department of Public Health Uniform POLST form, National POLST form, another state's POLST portable medical orders form, or an out-of-hospital Do Not Resuscitate (DNR) order sanctioned by a state in the United States that: (i) has been executed by an adult; and (ii) is apparent and immediately available.

(c-5) If an individual without decisional capacity has an operative and unrevoked living will and the attending physician, in accordance with Section 4 of the Illinois Living Will Act, determines that the individual has a terminal condition and records the condition in the individual's medical record, then the individual's surrogate decision maker, in the order of priority under subsection (a) of Section 25, is authorized to consent to a POLST on behalf of the individual to ensure that the individual's wishes are respected.

(d) A health care professional or health care provider may presume, in the absence of knowledge to the contrary, that a completed Department of Public Health Uniform POLST form, National POLST form, another state's POLST portable medical orders form, or an out-of-hospital Do Not Resuscitate (DNR) order sanctioned by a state in the United States executed by an adult, or a copy of that form or a previous version of the uniform form, is valid. A health care professional or health care provider, or an employee of a health care professional or health care provider, who in good faith complies with a cardiopulmonary resuscitation (CPR) or life-sustaining treatment order, Department of Public Health Uniform POLST form, or a previous version of the uniform form made in accordance with this Act is not, as a result of that compliance, subject to any criminal or civil liability, except for willful and wanton misconduct, and may not be found to have committed an act of unprofessional conduct.

(d-5) Before voiding or revoking a Department of Public Health Uniform POLST form, National POLST form, or another state's POLST portable medical orders form executed by the individual, that individual's legally authorized surrogate decision maker shall first: (1) engage in consultation with a qualified health care practitioner; (2) consult the patient's advance directive, if available; and (3) make a good faith effort to act consistently, at all times, with the patient's known wishes, using substituted judgment as the standard. If the patient's wishes are unknown and remain unknown after reasonable efforts to discern them, the decision shall be made on the basis of the patient's best interests as determined by the surrogate decision maker. A qualified health care practitioner shall document the reasons for this action in the patient's medical record. This process does not apply to an individual wanting to revoke his or her own POLST form.

(e) Nothing in this Section or this amendatory Act of the 94th General Assembly or this amendatory Act of the 98th General Assembly shall be construed to affect the ability of a physician or other practitioner to make a do-not-resuscitate order.

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