Default Health-Care Surrogate Priority in Arkansas
At a glance
| When the default route opens | Adult or emancipated minor lacks capacity as determined by designated physician; an agent or guardian is unappointed or unavailable; provider selection also requires no available patient-designated surrogate (§ 20-6-105(b)–(c)). |
|---|---|
| Care or setting covered | Health-care decisions mean consent, refusal, or withdrawal of consent to care affecting physical or mental condition; provider records the appointment in the clinical record (§§ 20-6-102(7)–(8), 20-6-105(c)(1)). |
| Guardian or appointed agent | Patient-designated surrogate may act if agent or guardian has not been appointed or is unavailable; provider selection follows when none of those people can act (§ 20-6-105(a)–(c)). |
| Family and partner order | Provider may consider, in descending preference, spouse unless legally separated, adult child, parent, adult sibling, then other adult relative; this is a discretionary consideration, not an automatic appointment (§ 20-6-105(c)(3)–(4)). |
| Friend or other nonfamily person | An adult need not be a relative if specially caring, familiar with patient's values, available, and willing; provider chooses the best-qualified surrogate (§ 20-6-105(c)(2)–(4)). |
| Decision within one class | Provider selects the best-qualified person using individual factors; § 20-6-105(c)(3)–(4) states no majority or unanimity vote among same-rank relatives. |
| Who is available and eligible | Adult must show special care and concern, know patient's values, be reasonably available and willing; protective-order subjects are ineligible. Contact, care, visits, and decision ability inform provider selection (§§ 20-6-102(20), 20-6-105(c)(2)–(3)). |
| Decisions limited or excluded | Surrogate follows known instructions and wishes, otherwise best interest. A provider-selected surrogate needs two physician certifications before withholding or withdrawing artificial nutrition or hydration (§ 20-6-106(a)–(b)). |
| No surrogate or disputed authority | If no eligible surrogate is reasonably available, designated physician may decide after ethics-officer recommendations or concurrence of an independent second physician. A challenge faces a rebuttable presumption favoring selection (§ 20-6-105(c)(5)–(6)). |
Requirements one by one
When a surrogate can act
Under § 20-6-105(a)–(b), an adult or emancipated minor can tell the supervising healthcare provider whom to designate as surrogate, orally or in writing. That person may decide only after the designated physician finds the patient lacks capacity and an agent or guardian has not been appointed or is not reasonably available. When no chosen surrogate can act either, § 20-6-105(c)(1) directs the supervising provider to select a surrogate and record the appointment.
The provider must select an adult who has shown special care and concern, knows the patient's values, is reasonably available, and is willing. Under § 20-6-105(c)(3)–(4), the provider assesses decision ability and contact and may consider family in descending preference: spouse unless legally separated, adult child, parent, adult sibling, then another adult relative. The wording does not make that list an automatic first-available appointment or prescribe a vote among relatives of one class. A person subject to an order to avoid the patient cannot serve.
Decisions and fallback
Section 20-6-106(a) requires the surrogate to follow known instructions and wishes, then the patient's best interest with known values considered. Under § 20-6-106(b), a surrogate selected by the provider may withhold or withdraw artificial nutrition or hydration only with certification by the designated physician and a second independent physician of the specified dying and capacity findings. Section 20-6-106(c) makes a surrogate's decision effective without judicial approval.
If no eligible surrogate is reasonably available, § 20-6-105(c)(5) permits the designated physician to decide after ethics-officer recommendations or concurrence by an independent second physician. A challenge to a surrogate's selection or authority faces the rebuttable presumption and burden stated in § 20-6-105(c)(6).
What trips people up
The descending family list says consideration may be given in that order. The provider's statutory job is to choose the best-qualified eligible adult. Later 2023 Act 49 and 2025 Act 202 changed § 20-6-106's authority to seek public benefits and related financial records; they did not change these health-care selection and decision provisions.
Statutes and sources
Verbatim official act excerpts, the source URL, and access date are in the source fields above.
Source links
Every statute quoted above, linked, with the date we checked it.
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