Skip to main content
Illinois Healthcare Directive
Support GuideIllinois18 min read

Illinois Healthcare Directive

Illinois healthcare directive rules: a health care power of attorney (one witness), a living will (two witnesses), the surrogate priority list, and IDPH POLST.

By Settled Editorial

Illinois does not pack your medical wishes into one form. It uses separate documents. A health care power of attorney names an agent to speak for you and needs one witness. A living will declaration covers only end-of-life care, needs two witnesses, and stays dormant while an authorized agent is available. A mental health treatment preference declaration covers psychiatric treatment. And the IDPH Uniform POLST form turns treatment choices into a portable medical order. When you signed none of them, the Health Care Surrogate Act supplies a decision-maker by statute. (See 755 ILCS 45/4-5.1, 755 ILCS 45/4-10, 755 ILCS 35/3, 755 ILCS 43/20, and 755 ILCS 40/25.)

Use this page as a planning map, not as a signing kit or a template you fill in. Each document has its own witness rule and its own trigger, and Illinois hospitals and courts read them strictly. When your health, your family, or a possible disagreement makes the choice hard, talk with a licensed Illinois attorney before you sign. This page connects to the Illinois estate and probate directory and pairs with the Illinois will requirements guide, the document that takes over after death.

Four Illinois Documents, Not One

People come looking for a single "Illinois advance directive" and find a set instead. The Illinois Department of Public Health publishes standard forms for four of them. Here is the short version, then the detail on each one. (Sources: 755 ILCS 45/4-10, 755 ILCS 35/3, 755 ILCS 43/20, and 755 ILCS 40/65.)

DocumentWhat it doesWitnessesWhen it applies
Health care power of attorney (755 ILCS 45/4)Names an agent for any health care decisionOneBy default when you cannot make a decision, or, if you check that box, starting immediately
Living will declaration (755 ILCS 35/)Directs that death delaying procedures not prolong dyingTwoOnly with a terminal condition, and only while no authorized agent is available
Mental health treatment preference declaration (755 ILCS 43/)States preferences on psychotropic medication, electroconvulsive treatment, and admission, and can name an attorney-in-factTwoWhile you are incapable, and only if invoked within 3 years of signing
IDPH Uniform POLST (755 ILCS 40/65)Portable medical order about treatment nowCompleted with, and signed by, a qualified health care practitionerFor serious illness in the present

The first three you sign ahead of time. The fourth is a medical order a clinician writes with you. Behind all of them sits the Health Care Surrogate Act (755 ILCS 40/), which is a statute rather than a form: it ranks a default decision-maker by relationship and runs on its own when no operative directive covers your condition.

The mental health declaration is the one most planning checklists drop, and the omission carries a consequence. Under 755 ILCS 40/60, a default surrogate other than a court-appointed guardian may not consent to psychotropic medication, electroconvulsive therapy, or admission to a mental health facility. A declaration under 755 ILCS 43/ is the planning route Illinois provides for those specific decisions.

One more distinction worth keeping straight: the health care power of attorney is not the same instrument as an Illinois power of attorney for property, which handles money and finances. They run under different laws and different forms, though 755 ILCS 45/4-10(a) does allow the statutory health care power to be included in or combined with another form of power of attorney governing property or other matters.

The Health Care Power of Attorney

Most Illinois plans start with the health care power of attorney, because it names a person rather than a rule. The purpose of the law is to keep the choice with you and the person you pick. (Source: 755 ILCS 45/4-1.) You choose an adult you trust as your health care agent. The powers that may be delegated include every power you have to be informed about health care and to consent to, refuse, or withdraw any type of it, and the agency can extend past death for anatomical gift, autopsy, disposition of remains, and records access. (Source: 755 ILCS 45/4-3.) Your agent is also your personal representative under HIPAA, with the same right you have to examine and copy medical records. (Sources: 755 ILCS 45/4-4 and 755 ILCS 45/4-10.)

A few rules shape who signs and who cannot:

  • One witness signs. Section 4-5.1 says every health care agency must bear the signature of a witness, and the witness must be at least 18. Section 4-10(a) says a nonstatutory form need not be witnessed, which is a conflict the statute leaves open. The section below sets out both texts and the conservative course. (Source: 755 ILCS 45/4-5.1.)
  • Some people cannot witness. Your attending physician and the other licensed professionals treating you (and their relatives), an owner or operator of a health care facility where you are a patient or resident, and the agent or successor agent may not serve as the witness. The relative ban reaches further than most people expect: a parent, sibling, or descendant, or the spouse of one, is barred whether that relationship runs to you or to your agent, by blood, marriage, or adoption. So your agent's brother cannot witness the document either. (Source: 755 ILCS 45/4-5.1.)
  • A notary is not required. The statutory short form takes one qualified witness, not a notary.
  • Your treating doctor cannot be your agent. The physician or provider giving you care may not act as your agent, though a physician who is not treating you may. (Source: 755 ILCS 45/4-5.)
  • You pick when the agent's authority starts. The statutory form offers a checkbox. The default, implemented when no box is checked, lets the agent decide only when your treating physicians determine you cannot decide for yourself. A second option adds immediate records access. A third gives the agent authority starting immediately and continuing after incapacity, while you keep the right to decide for as long as you are able. (Source: 755 ILCS 45/4-10.)

Illinois gives you a statutory short form to work from. You may use that form, adapt it, or write your own nonstatutory version, and the law even allows electronic signatures. (Source: 755 ILCS 45/4-10.) Name a successor agent too, so a backup can step in if your first choice is unavailable.

Two Sections Disagree About Witnessing a Nonstatutory Form

Most summaries pick one of these provisions and ignore the other. Read them side by side and the disagreement is plain.

  • 755 ILCS 45/4-10(a) says a nonstatutory health care power must be executed by the principal, must designate the agent and the agent's powers, and must comply with the limitations in Section 4-5, "but they need not be witnessed or conform in any other respect to the statutory health care power."
  • 755 ILCS 45/4-5.1(a) says "Every health care agency shall bear the signature of a witness to the signing of the agency," then lists who may not serve. 755 ILCS 45/4-4(c) defines a health care agency to reach a power of attorney or other written instrument defining the agency, which is broad enough to cover a nonstatutory form.

So one section exempts nonstatutory forms from witnessing and another requires a witness on every health care agency. The statute does not reconcile them, and neither does a later-in-time argument settle it: the witness rule in Section 4-5.1 dates from P.A. 99-328, while Section 4-10 has been amended several times since without the no-witness sentence coming out.

The conservative course satisfies both. Have a qualified witness sign your health care power whichever form you use, and pick a witness who clears the Section 4-5.1 disqualification list. A witness costs nothing and removes the argument before a hospital ever has to make it. If you want a nonstatutory form signed without a witness, take that question to a licensed Illinois attorney rather than to this page.

The Living Will Declaration

A living will is narrower than the health care power of attorney. It speaks to one situation: the end of life. In Illinois you sign a declaration directing that death delaying procedures not be used to prolong your dying if you reach a terminal condition. (Source: 755 ILCS 35/3.)

Here is what makes one valid and when it operates:

  • Two witnesses, both 18 or older. The declarant signs (or another person signs at the declarant's direction), and two individuals aged 18 or older witness it. That two-witness rule is stricter than the one-witness health care power of attorney. (Source: 755 ILCS 35/3.)
  • It applies only to a terminal condition. A terminal condition is an incurable and irreversible condition where death is imminent and death delaying procedures would only prolong the dying process. (Source: 755 ILCS 35/2.)
  • A doctor has to verify it. The declaration operates once your attending physician examines you and certifies the terminal condition in writing, which makes you a qualified patient under the Act. (Source: 755 ILCS 35/2.)
  • Food and water have limits. Nutrition and hydration are not withdrawn if that withdrawal would cause death solely from dehydration or starvation rather than from the terminal condition itself. A pregnancy can also suspend the declaration where the fetus could develop to live birth. (Source: 755 ILCS 35/2 and 755 ILCS 35/3.)
  • A living agent outranks it. This is the rule most Illinois readers have never heard, and it changes how the two documents fit together. A declaration is not operative as long as an agent is available who is authorized by a health care agency to make decisions about life-sustaining or death delaying procedures, and nothing in the Living Will Act may impair or supersede that agent's authority. (Sources: 755 ILCS 35/3.5 and 755 ILCS 45/4-11.)

That last rule is the reason a living will functions in Illinois as a backstop rather than as a co-equal instruction. Signing both does not put two sets of end-of-life directions in play at once. While your agent is available and holds authority over life-sustaining or death delaying procedures, the agent decides and the declaration stays dormant. The declaration generally matters where no such agent is available, so what you write into the health care power of attorney, including any limits you place on the agent, carries the weight.

Because the living will covers only the terminal-condition question, many Illinois plans lean on the health care power of attorney for everything else and treat the living will as a fallback, or fold the end-of-life instruction into the health care power of attorney itself.

When You Signed Nothing: the Health Care Surrogate Act

Say you never named an agent and never signed a living will, and you can no longer make decisions. Illinois does not leave the hospital guessing. The Health Care Surrogate Act names who decides. Once a provider finds you lack decisional capacity and confirms that no health care agent is available, the provider makes a reasonable inquiry for a surrogate and tries to reach a family member within 24 hours. (Source: 755 ILCS 40/25.)

The right to decide passes down this order:

PriorityWho decides
1The patient's guardian of the person
2The patient's spouse (a party to an Illinois civil union has the same rights as a spouse, 750 ILCS 75/20)
3Any adult son or daughter
4Either parent
5Any adult brother or sister
6Any adult grandchild
7A close friend
8The patient's guardian of the estate
9A temporary custodian appointed under the Juvenile Court Act

Three rules shape how the list works:

  • Life-sustaining decisions need a qualifying condition. A surrogate can decide to forgo life-sustaining treatment only when the attending physician and at least one other qualified practitioner certify in writing that the patient has a qualifying condition: a terminal condition, permanent unconsciousness, or an incurable or irreversible condition. (Source: 755 ILCS 40/20 and 755 ILCS 40/10.)
  • The surrogate follows your wishes. A surrogate decides as closely as possible to what you would have done or intended, weighing your personal, philosophical, religious, and moral beliefs, and turns to your best interests only if your wishes remain unknown after reasonable efforts to discern them. (Source: 755 ILCS 40/20.) A close friend who steps in at priority seven has to present the affidavit described in the Act, showing real familiarity with your life and values. (Source: 755 ILCS 40/10.)
  • Ties go to the majority. When two or more people at the same level disagree, a majority of the available people in that group controls, and a member in the minority can start guardianship proceedings if they object. (Source: 755 ILCS 40/25.)

Two limits on the surrogate route are worth knowing, because both cut against the assumption that the list quietly resolves everything:

  • Your objection stops it. If the person identified as surrogate is not a court-appointed guardian, and you object to that surrogate or to a decision that surrogate made, the Act does not apply. (Source: 755 ILCS 40/20.)
  • A decision to forgo treatment is witnessed. A surrogate expresses a decision to forgo life-sustaining treatment to the attending physician and one adult witness age 18 or older. The physician documents the decision and the substance of any known discussion in the medical record, and the witness signs it. (Source: 755 ILCS 40/20.)
  • Mental health decisions sit outside the list. A surrogate other than a court-appointed guardian may not consent to psychotropic medication, electroconvulsive therapy, or admission to a mental health facility, though the surrogate may petition for those services under the Mental Health and Developmental Disabilities Code. (Source: 755 ILCS 40/60.)

The takeaway for planning is simple. The surrogate list works, but it can hand the decision to a relative you would not have chosen, or split it among several. Naming your own agent in a health care power of attorney keeps that choice in your hands.

The IDPH Uniform POLST Form

POLST is different in kind from the documents above. The letters stand for practitioner orders for life-sustaining treatment, and Illinois recognizes a Department of Public Health Uniform POLST form. Under 755 ILCS 40/65(a) the document may be executed by the individual, and it may also be executed by a qualified health care practitioner. The IDPH Uniform POLST form is completed with a practitioner, whose signature makes it a medical order that emergency crews follow. (Source: 755 ILCS 40/65.)

Here is how it fits with the rest:

  • It is for serious illness now, not the far future. A POLST turns your treatment choices, such as whether to attempt CPR and how much intervention you want, into portable orders that travel with you and that emergency crews follow.
  • It stays voluntary. No one can require a POLST, it cannot be a condition of admission to any facility, and you should review it every year and whenever your condition changes. (Source: 755 ILCS 40/65.)
  • Your agent can consent to it. Consent may come from you, from your agent under a health care power of attorney, from a guardian, or from a surrogate. (Source: 755 ILCS 40/65.)

Think of POLST as the bridge between your directive and the paramedic at your door. It works alongside a health care power of attorney and a living will, not instead of them. The Illinois Department of Public Health publishes the current form and guidance. (Source: IDPH Advance Directives.)

Putting the Illinois Documents Together

If you want your medical wishes to hold up in Illinois, a clean plan usually runs in this order:

  1. Name a health care agent in a health care power of attorney under 755 ILCS 45/4-10, and sign it in front of one qualified witness.
  2. Name a successor agent, so a backup can act if your first choice cannot.
  3. Consider whether a living will declaration adds anything for you. It takes two witnesses, and under 755 ILCS 35/3.5 it stays dormant while an authorized agent is available, so in most Illinois plans it operates only as a fallback. Instructions you want to control day to day generally belong on the face of the health care power of attorney.
  4. Consider whether a mental health treatment preference declaration under 755 ILCS 43/ belongs in your plan. It takes two witnesses and covers decisions a default surrogate cannot make.
  5. Give copies to your agent, your doctor, and your family, and keep the originals somewhere your agent can reach.
  6. If you are seriously ill or frail, ask your practitioner about an IDPH Uniform POLST form so your orders travel with you.
  7. Review everything after any major change in your health or family, since a document can stop matching your wishes.

An advance directive is one piece of an Illinois plan. Pair it with the documents that decide who inherits and who runs the estate. See the Illinois will requirements guide for the will that takes effect at death, the Illinois intestate succession guide for what happens when there is no will, and the Illinois executor duties guide for the job that follows. For the full path an estate takes through the Circuit Court, start at the Illinois probate guide or the Illinois estate and county directory.

This guide is general information about Illinois advance directives, not advice for your situation. Confirm anything that affects your care or your family with your physician or a licensed Illinois attorney before you sign or rely on a directive.

Sources:

It is not legal advice.

Prefer to talk it through? Connect with an estate-planning attorney

Settled Estate is not a law firm and does not give legal advice.

Information current as of July 19, 2026

Settled Estate is not a law firm, and this content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in Illinois can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

Not sure which documents you need?

The free estate planning assessment builds a short document list for your situation.

Take the free estate planning assessment
All Illinois guides← Back to all articles