Default Health-Care Surrogate Priority in South Carolina

At a glance

Requirements one by one

When the route opens and what care it covers

Section 44-66-20(8) defines inability to consent as inability to understand the condition and proposed care, reason about it, or communicate a clear decision. Ordinarily, two examining licensed physicians must certify it. In an emergency, the responsible health-care professional may certify instead after recording that the two-physician delay would harm the patient; a qualifying terminal-illness hospice certification also suffices. The chapter's health-care definition reaches physical and mental treatment, nursing and rehabilitation services, and placement in or removal from facilities providing those forms of care (§ 44-66-20(1), (7)).

The decision order

Section 44-66-30(A) starts with a court-appointed guardian for decisions within the guardianship, then an attorney-in-fact appointed by the patient for decisions within the delegated authority. The family sequence is an eligible spouse, adult children, a parent, adult siblings, grandparents, and a close adult relative by blood or marriage. A spouse separated through one of the specified court orders or signed marital or property agreements does not take the spouse rank. A person authorized by another statute follows the family classes.

The final class in § 44-66-30(A)(10) is an adult with an established relationship only after a hospital or other facility makes good-faith efforts to find classes (1) through (9). That adult must know the patient's wishes, act in good faith, be willing and able to help, and be neither a paid caregiver nor the patient's health-care provider. The adult signs a dated, notarized acknowledgment describing the relationship, while the facility records its search for higher-priority people.

Choosing among available people

Section 44-66-30(A)(4), (6)–(8) calls for a majority of reasonably available people when there are multiple adult children, adult siblings, grandparents, or qualifying other adult relatives. Subsection (D) withholds priority from someone the responsible provider finds unavailable, unwilling, or unable to consent. Under subsection (E), actual knowledge that the patient opposed a person taking part bars the provider from giving that person priority in classes (A)(5) through (A)(10).

Limits and fallback

Under § 44-66-30(F), this ladder does not authorize a decision when incapacity is temporary and waiting for the patient will not significantly harm health. Subsections (G)–(H) direct the decision maker to use the patient's ascertainable wishes, otherwise the patient's best interests, and permit consent or refusal. Under § 44-66-60(A)–(C), known contrary religious beliefs or unambiguous, uncontradicted prior instructions restrict care, subject to the statute's stated qualifications.

If equally ranked people disagree, § 44-66-30(C) permits a probate-court petition for a care order or guardian appointment. Sections 44-66-40 and 44-66-50 allow specified care without consent when an authorized person cannot act in time or cannot reasonably be found and is willing. The medical need and urgency conditions differ between those two sections.

What trips people up

The final relationship class is more than a close-friend label. Section 44-66-30(A)(10) requires a facility search and record, a notarized acknowledgment, and the adult's knowledge of the patient's wishes. A paid caregiver or the patient's care provider cannot use that route.

An urgent decision does not always require waiting for the top-ranked person. Section 44-66-40(B) permits an available lower-ranked person to decide if contacting a higher-ranked person would cause the specified serious health risk.

Common questions

Can one adult child decide when there are several? Section 44-66-30(A)(4) calls for a majority of the adult children reasonably available for consultation.

What happens if family members at the same rank disagree? Section 44-66-30(C) allows an authorized person, involved provider, or other interested person to petition probate court for a care order or guardian appointment.

May clinicians treat while searching for a decision maker? Under § 44-66-40(A), care without consent is allowed under its serious-risk conditions, and relief of suffering is allowed while an authorized person is unavailable; § 44-66-50 provides another route when no authorized person is reasonably available and willing and care is medically necessary for the listed purposes.

Statutes and sources

Verbatim official excerpts, the chapter URL, and access dates are in the source fields above.