Estate of Austwick v. Murphy, Cook County Public Guardian

In October 1991, a probate court determined that Lucille Austwick (plaintiff), who was 81 years old, was a disabled person under the Health Care Surrogate Act. The court appointed Patrick Murphy, the Cook County public guardian (guardian) (defendant), as a guardian for Austwick and her estate. In July 1992, an attorney employed by the guardian visited Austwick and asked her whether she wanted to enter a do-not-resuscitate (DNR) order in her medical chart. After the guardian’s attorney explained to Austwick what a DNR order entailed, Austwick told the attorney that she wanted a DNR order. Subsequently, the guardian gave his consent to Austwick’s doctor to have a DNR order placed in Austwick’s medical chart. In January 1994, Austwick petitioned the probate court through the Legal Advocacy Service of the Illinois Guardianship and Advocacy Commission to have the DNR order removed from her medical chart. Austwick argued that because she did not lack decisional capacity, the guardian had no authority under the act to consent to a DNR order on her behalf. At a petition hearing, the guardian’s attorney testified that in addition to the initial visit with Austwick in July 1992, he had met again with Austwick three days after Austwick had filed the petition to remove the DNR order and that Austwick had told him that she still wanted the DNR order. The guardian’s attorney asserted that he believed that Austwick had decisional capacity both times he met with her. A medical expert testified that Austwick did not have one of the qualifying conditions under the act but expressed his opinion that the determination that Austwick was disabled under the act meant that she likely lacked some capacity to make decisions. The court ordered the DNR order to be removed. The guardian appealed, arguing that the court erred in removing the DNR order because the act authorized him to give consent to a DNR order on Austwick’s behalf.