35-22-406. Decisions by surrogate.

(a) If a valid advance health care directive does not exist, a surrogate may make a health care decision for a patient who is an adult or emancipated minor if the patient has been determined by the primary physician or the primary health care provider to lack capacity and no agent or guardian has been appointed or the agent or guardian is not reasonably available.

(b) An adult or emancipated minor may designate any individual to act as surrogate by personally informing the primary health care provider. In the absence of a designation, or if the designee is not reasonably available, it is suggested that any member of the following classes of the patient's family who is reasonably available, in descending order of priority, may act as surrogate:

(i) The spouse, unless legally separated;

(ii) An adult child;

(iii) A parent;

(iv) A grandparent;

(v) An adult brother or sister;

(vi) An adult grandchild.

(c) If none of the individuals eligible to act as surrogate under subsection (b) of this section is reasonably available, an adult who has exhibited special care and concern for the patient, who is familiar with the patient's personal values, and who is reasonably available may act as surrogate.

(d) A surrogate shall communicate his assumption of authority as promptly as practicable to the members of the patient's family specified in subsection (b) of this section who can be readily contacted.

(e) If more than one (1) member of a class assumes authority to act as surrogate, and the other members of the class do not agree on a health care decision and the primary health care provider is so informed, the primary health care provider shall comply with the decision of a majority of the members of that class who have communicated their views to the provider.

(f) A surrogate shall make a health care decision in accordance with the patient's individual instructions, if any, and other wishes to the extent known to the surrogate. Otherwise, the surrogate shall make the decision in accordance with the surrogate's determination of the patient's best interest. In determining the patient's best interest, the surrogate shall consider the patient's personal, philosophical, religious and ethical values to the extent known to the surrogate and reliable oral or written statements previously made by the patient, including, but not limited to, statements made to family members, friends, health care providers or religious leaders.

(g) A health care decision made by a surrogate for a patient is effective without judicial approval.

(h) The patient at any time may disqualify another, including a member of the individual's family, from acting as the individual's surrogate by a signed writing or by personally informing the primary health care provider of the disqualification.

(j) Unless related to the patient by blood, marriage or adoption, a surrogate may not be an owner, operator or employee of a residential or community care facility at which the patient is receiving care.

(k) A primary health care provider may require an individual claiming the right to act as surrogate for a patient to provide a written declaration under penalty of perjury stating facts and circumstances reasonably sufficient to establish the claimed authority.