CHAPTER 192
(SB 74)
Who may make a health care decision for a person not able to consent.
ENTITLED, An Act to
revise certain provisions regarding health care decisions for persons
incapable of giving consent.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section
1.
That
§
34-12C-1
be amended to read as follows:
34-12C-1.
Terms used in this chapter mean:
(1)
"Attending physician," the physician who
at the time of reference
has primary
responsibility for the
health care of a person
treatment and care of the patient
;
(2)
"Durable power of attorney for health care," an instrument executed pursuant to § 59-7-
2.1 that authorizes its attorney in fact to make a health care decision or to consent to
health care on behalf of its principal;
(3)
"Health care," any care, treatment, service, or procedure to maintain, diagnose, or treat
a person's physical or mental condition. The term also includes admission to, and
personal and custodial care provided by, a licensed health care facility as defined in
§ 34-12-1.1;
(4)
"Health care decision," the determination of the health care to be provided to a person;
(5)
"Health care provider," any licensed health care facility and any person, corporation, or
organization licensed, certified, or otherwise authorized or permitted by law to
administer health care
, and any physician licensed pursuant to chapter 36-4
;
(6)
"Incapacitated person," any person who is incapable of giving informed consent to
health care;
(7)
"Person available to consent," any person who is authorized to make a health care
decision for an incapacitated person and whose existence is known to the health care
provider and who, in the good faith judgment of the health care provider, is reasonably
available for consultation and is willing and competent to make an informed health care
decision
;
(8) "Close friend," any adult who has provided significant care and exhibited concern for
the patient, and has maintained regular contact with the patient so as to be familiar with
the patient's activities, health, and religious or moral beliefs
.
Section
2.
That
§
34-12C-3
be amended to read as follows:
34-12C-3.
In the absence of a durable power of attorney for health care or the appointment of
a guardian of the person, or if neither the attorney in fact nor guardian is available to consent, a
health care decision for an incapacitated person may be made by the following
persons or
members
of the incapacitated person's family who are available to consent, in the order stated:
(1)
The spouse, if not legally separated;
(2)
An adult child;
(3)
A parent;
(4)
An adult sibling;
(5)
A grandparent or an adult grandchild;
(6)
An adult aunt or uncle
, adult cousin,
or an adult niece or nephew
;
(7) Close friend
.
However, any person may, before a judicial adjudication of incompetence or incapacity,
disqualify any member of
his
the person's
family from making a health care decision for
him
the
person
. The disqualification shall appear in a document signed by the person or may be made by
a notation in
his
the person's
medical record, if made at
his
the person's
direction.
Any member of the incapacitated person's family may delegate the authority to make a health
care decision to another family member in the same or succeeding class. The delegation shall be
signed and may specify conditions on the authority delegated.
Any person authorized to make a health care decision for an incapacitated person shall be
guided by the express wishes of the incapacitated person, if known, and shall otherwise act in good
faith, in the incapacitated person's best interest, and may not arbitrarily refuse consent. Whenever
making any health care decision for the incapacitated person, the person available to consent shall
consider the recommendation of the attending physician, the decision the incapacitated person
would have made if the incapacitated person then had decisional capacity, if known, and the
decision that would be in the best interest of the incapacitated person.
Signed March 6, 2007