## Facts

- In 1991, an Illinois probate court adjudicated Lucille Austwick (age 81) a disabled person and appointed the Cook County Public Guardian as guardian of her person and estate.
- In 1992, an attorney for the guardian met with Austwick, explained the nature and effect of a do-not-resuscitate (DNR) order, and asked whether she wanted one in her medical chart.
- After the explanation, Austwick stated she wanted a DNR order, and the guardian consented to her physician placing a DNR order in her chart.
- In 1994, Austwick (through the Legal Advocacy Service) petitioned to remove the DNR, asserting she had decisional capacity regarding resuscitation and that the guardian lacked authority under the Illinois Health Care Surrogate Act (HCSA) to consent to a DNR if she retained capacity.
- At the hearing, the guardian’s attorney testified that Austwick expressed a desire for a DNR and appeared to understand on both the 1992 visit and a later visit shortly after the petition was filed.
- A medical expert testified that Austwick did not have a qualifying HCSA condition (e.g., terminal illness or permanent unconsciousness) and offered the view that a person adjudicated disabled likely lacked some decisionmaking capacity.
- The probate court granted Austwick’s petition and ordered the DNR removed from her medical chart, and the Public Guardian appealed.

## Issues

1. Under the Illinois Health Care Surrogate Act, may a court-appointed guardian consent to or maintain a DNR order for a ward who retains decisional capacity regarding that choice?
2. Does a guardianship adjudication of “disabled person” establish, by itself, that the ward lacks “decisional capacity” under the HCSA for end-of-life decisions?

## Decision

- The Illinois Appellate Court affirmed the probate court’s order removing the DNR.
- The court held that a disability adjudication does not automatically mean the ward lacks decisional capacity under the HCSA.
- Because the ward was found to have decisional capacity regarding the DNR, the HCSA did not authorize the guardian to consent to forgoing resuscitation on her behalf.
- The DNR was therefore properly removed from the medical chart.

## Legal Principles

- A finding of disability for guardianship purposes does not, without more, establish lack of decisional capacity for a specific health care decision under the HCSA.
- Decisional capacity under the HCSA is decision-specific and requires an individualized determination tied to the particular treatment choice.
- When a patient has decisional capacity, the patient must personally consent to forgo life-sustaining treatment; surrogate authority applies only upon incapacity and satisfaction of the statute’s conditions.
- A guardian’s medical decisionmaking authority may vary by treatment type and by the ward’s capacity for that decision; authority to act as surrogate is not triggered solely by the existence of a guardianship.

## Conclusion

The appellate court ruled that Illinois law requires a capable patient to make her own decision regarding resuscitation, and that a guardian cannot rely on a general disability adjudication to impose or maintain a DNR when the ward retains decisional capacity for that choice.


In re Estate of Austwick, 275 Ill. App. 3d 665, 656 N.E.2d 773 (Ill. App. Ct. 1995)