Bill Text: IL SB3398 | 2025-2026 | 104th General Assembly | Enrolled

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Bill Title: Amends the Health Care Surrogate Act. Requires a health care provider to release the medical records of the patient as a response to a written request for the release of records to an individual who was named as a surrogate or any person, entity, or organization presenting valid authorization. Provides that, upon a determination that a patient lacks decisional capacity and a health care surrogate is identified, a health care facility shall provide specified written information, which may be provided electronically, to the surrogate. Provides that a health care provider who relies on and carries out a surrogate's directions and who acts with due care and in accordance with the Act shall not be subject to any claim based on lack of patient authorization for unprofessional conduct. Effective immediately.

Sponsorship: Partisan Bill (Democrat 2)

Status: (Passed) 2026-08-07 - Public Act . . . . . . . . . 104-0820 [SB3398 Detail]

Download: Illinois-2025-SB3398-Enrolled.html

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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 25 and 30 as follows:
(755 ILCS 40/25) (from Ch. 110 1/2, par. 851-25)
Sec. 25. Surrogate decision making.
(a) When a patient lacks decisional capacity, the health
care provider must make a reasonable inquiry as to the
availability and authority of a health care agent under the
Powers of Attorney for Health Care Law. When no health care
agent is authorized and available, the health care provider
must make a reasonable inquiry as to the availability of
possible surrogates listed in items (1) through (4) of this
subsection. For purposes of this Section, a reasonable inquiry
includes, but is not limited to, identifying a member of the
patient's family or other health care agent by examining the
patient's personal effects or medical records. If a family
member or other health care agent is identified, an attempt to
contact that person by telephone must be made within 24 hours
after a determination by the provider that the patient lacks
decisional capacity. No person shall be liable for civil
damages or subject to professional discipline based on a claim

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of violating a patient's right to confidentiality as a result
of making a reasonable inquiry as to the availability of a
patient's family member or health care agent, except for
willful or wanton misconduct.
The surrogate decision makers, as identified by the
attending physician, are then authorized to make decisions as
follows: (i) for patients who lack decisional capacity and do
not have a qualifying condition, medical treatment decisions
may be made in accordance with subsection (b-5) of Section 20;
and (ii) for patients who lack decisional capacity and have a
qualifying condition, medical treatment decisions including
whether to forgo life-sustaining treatment on behalf of the
patient may be made without court order or judicial
involvement in the following order of priority:
(1) the patient's guardian of the person;
(2) the patient's spouse;
(3) any adult son or daughter of the patient;
(4) either parent of the patient;
(5) any adult brother or sister of the patient;
(6) any adult grandchild of the patient;
(7) a close friend of the patient;
(8) the patient's guardian of the estate;
(9) the patient's temporary custodian appointed under
subsection (2) of Section 2-10 of the Juvenile Court Act
of 1987 if the court has entered an order granting such
authority pursuant to subsection (12) of Section 2-10 of

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the Juvenile Court Act of 1987.
The health care provider shall have the right to rely on
any of the above surrogates if the provider believes after
reasonable inquiry that neither a health care agent under the
Powers of Attorney for Health Care Law nor a surrogate of
higher priority is available.
Where there are multiple surrogate decision makers at the
same priority level in the hierarchy, it shall be the
responsibility of those surrogates to make reasonable efforts
to reach a consensus as to their decision on behalf of the
patient regarding the forgoing of life-sustaining treatment.
If 2 or more surrogates who are in the same category and have
equal priority indicate to the attending physician that they
disagree about the health care matter at issue, a majority of
the available persons in that category (or the parent with
custodial rights) shall control, unless the minority (or the
parent without custodial rights) initiates guardianship
proceedings in accordance with the Probate Act of 1975. No
health care provider or other person is required to seek
appointment of a guardian.
(b) After a surrogate has been identified, the name,
address, telephone number, and relationship of that person to
the patient shall be recorded in the patient's medical record.
(c) Any surrogate who becomes unavailable for any reason
may be replaced by applying the provisions of Section 25 in the
same manner as for the initial choice of surrogate.

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(d) In the event an individual of a higher priority to an
identified surrogate becomes available and willing to be the
surrogate, the individual with higher priority may be
identified as the surrogate. In the event an individual in a
higher, a lower, or the same priority level or a health care
provider seeks to challenge the priority of or the
life-sustaining treatment decision of the recognized surrogate
decision maker, the challenging party may initiate
guardianship proceedings in accordance with the Probate Act of
1975.
(e) The surrogate decision maker shall have the same right
as the patient to receive medical information and medical
records and to consent to disclosure. Except as otherwise
provided by law, a health care provider shall, in response to a
written request from an individual who was named as a
surrogate or any person, entity, or organization presenting a
valid authorization for the release of records signed by the
surrogate, release the medical records in accordance with
Section 8-2001 of the Code of Civil Procedure.
(f) Any surrogate shall have the authority to make
decisions for the patient until removed by the patient who no
longer lacks decisional capacity, appointment of a guardian of
the person, or the patient's death.
(g) Upon a determination that a patient lacks decisional
capacity and a health care surrogate is identified, a health
care facility shall provide written information, which may be

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provided electronically, to the surrogate that states:
(1) that a named patient has been determined to lack
decisional capacity by the attending physician, the name
of the attending physician, and the date of such
determination;
(2) that the surrogate was designated under this
Section and has the rights and responsibilities prescribed
by this Act, including the right to obtain the patient's
medical records;
(3) the identification of the surrogate, including the
surrogate's name, address, and telephone number, the
relationship of that person to the patient, the date the
surrogate was identified, and the name of the health care
facility where the patient was determined to lack
decisional capacity;
(4) that a copy of this written information shall be
placed in the patient's medical record and be provided to
any transferring health care provider or health care
facility;
(5) that the health care provider relying upon a
surrogate for medical decision making shall ensure the
surrogate form is provided to and is accessible to the
health care provider's health information or medical
records department; and
(6) that each health care provider shall be required
to disclose the identity of a patient's health care

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surrogate to any person qualified under subsection (a)
upon proper documentation of the relationship to the
patient if any qualified person under subsection (a)
requests such information.
(Source: P.A. 100-959, eff. 1-1-19.)
(755 ILCS 40/30) (from Ch. 110 1/2, par. 851-30)
Sec. 30. Reliance on authority of surrogate decision
maker.
(a) Every health care provider and other person (a
"reliant") shall have the right to rely on any decision or
direction by the surrogate decision maker (the "surrogate")
that is not clearly contrary to this Act, to the same extent
and with the same effect as though the decision or direction
had been made or given by a patient with decisional capacity.
Any person dealing with the surrogate may presume in the
absence of actual knowledge to the contrary that the acts of
the surrogate conform to the provisions of this Act. A reliant
will not be protected who has actual knowledge that the
surrogate is not entitled to act or that any particular action
or inaction is contrary to the provisions of this Act.
(b) A health care provider (a "provider") who relies on
and carries out a surrogate's directions, including a request
from a surrogate for records under subsection (e) of Section
25, and who acts with due care and in accordance with this Act
shall not be subject to any claim based on lack of patient

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consent or authorization, including, but not limited to,
claims of violation of privacy rights, or to criminal
prosecution or discipline for unprofessional conduct. Nothing
in this Act shall be deemed to protect a provider from
liability for the provider's own negligence in the performance
of the provider's duties or in carrying out any instructions
of the surrogate, and nothing in this Act shall be deemed to
alter the law of negligence as it applies to the acts of any
surrogate or provider.
(c) A surrogate who acts or fails to act with due care and
in accordance with the provisions of this Act shall not be
subject to criminal prosecution or any claim based upon lack
of surrogate authority or failure to act. The surrogate shall
not be liable merely because the surrogate may benefit from
the act, has individual or conflicting interests in relation
to the care and affairs of the patient, or acts in a different
manner with respect to the patient and the surrogate's own
care or interests.
(Source: P.A. 87-749.)
Section 99. Effective date. This Act takes effect upon
becoming law.