§ 75-2a-108. Default surrogates.

(1)

(a) Any member of the class described in Subsection (1)(b) may act as an adult's surrogate if:

(i)

(A) the adult has not appointed an agent;

(B) an appointed agent is not reasonably available; or

(C) a guardian has not been appointed; and

(ii) the member of the class described in Subsection (1)(b) is:

(A) over 18 years of age;

(B) has health care decision making capacity;

(C) is reasonably available; and

(D) has not been disqualified by the adult or a court.

(b) Except as provided in Subsection (1)(a), and subject to Subsection (1)(c), the following classes of the adult's family, in descending order of priority, may act as the adult's surrogate:

(i) the adult's spouse, unless the adult is divorced or legally separated; or

(ii) the following family members:

(A) a child;

(B) a parent;

(C) a sibling;

(D) a grandchild; or

(E) a grandparent.

(c) A person described in Subsection (1)(b), may not direct an adult's care if a person of a higher priority class is able and willing to act as a surrogate for the adult.

(d) A court may disqualify a person described in Subsection (1)(b) from acting as a surrogate if the court finds that the person has acted in a manner that is inconsistent with the position of trust in which a surrogate is placed.

(2) If the family members designated in Subsection (1)(b) are not reasonably available to act as a surrogate, a person who is 18 years of age or older, other than those designated in Subsection (1) may act as a surrogate if the person:

(a) has health care decision making capacity;

(b) has exhibited special care and concern for the patient;

(c) knows the patient and the patient's personal values; and

(d) is reasonably available to act as a surrogate.

(3) The surrogate shall communicate the surrogate's assumption of authority as promptly as practicable to the members of a class who:

(a) have an equal or higher priority and are not acting as surrogate; and

(b) can be readily contacted.

(4) A health care provider shall comply with the decision of a majority of the members of the highest priority class who have communicated their views to the provider if:

(a) more than one member of the highest priority class assumes authority to act as default surrogate;

(b) the members of the class do not agree on a health care decision; and

(c) the health care provider is informed of the disagreement among the members of the class.

(5)

(a) An adult may at any time disqualify a default surrogate, including a member of the adult's family, from acting as the adult's surrogate by:

(i) a signed writing;

(ii) personally informing a witness of the disqualification; or

(iii) informing the surrogate of the disqualification.

(b) Disqualification of a surrogate is effective even if the adult has been found to lack health care decision making capacity.

(6) If reasonable doubt exists regarding the status of an adult claiming the right to act as a default surrogate, the health care provider may:

(a) require the person to provide a sworn statement giving facts and circumstances reasonably sufficient to establish the claimed authority; or

(b) seek a ruling from the court under Section 75-2a-120.

(7) A health care provider may seek a ruling from a court pursuant to Section 75-2a-120 if the health care provider has evidence that a surrogate is making decisions that are inconsistent with an adult patient's wishes or preferences.

Amended by Chapter 107, 2008 General Session