Default Health-Care Surrogate Priority in South Dakota

Short answer If an adult cannot give informed consent and no health-care power-of-attorney agent or guardian can act, South Dakota ranks an available spouse, adult child, parent, adult sibling, more distant family, and finally a close friend. The attending physician can document incapacity, and a circuit court may intervene when no one is available or people in the same class disagree. This chapter expressly leaves some end-of-life and other specialized laws unaffected.
State
South Dakota
Statute checked
October 8, 2026
Sources
6 statutes

At a glance

When the default route opensAdult incapable of informed consent by guardianship, court or signed attending-physician finding; no agent/guardian or neither available (§§ 34-12C-2, 34-12C-3).
Care or setting coveredPhysical or mental care and licensed-facility admission/personal care; chapter excepts specialized treatment areas (§§ 34-12C-1(3), 34-12C-8).
Guardian or appointed agentAvailable health-care power-of-attorney agent or guardian precedes the statutory family list (§ 34-12C-3).
Family and partner orderSpouse not legally separated; adult child; parent; adult sibling; grandparent or adult grandchild; adult aunt/uncle/cousin/niece/nephew (§ 34-12C-3(1)–(6)).
Friend or other nonfamily personClose friend who gave significant care, showed concern and maintained regular contact familiarizing them with patient’s life and beliefs (§§ 34-12C-1(8), 34-12C-3(7)).
Decision within one classNonunanimous decisions by two or more available same-class people allow circuit-court intervention (§ 34-12C-4(2)).
Who is available and eligibleProvider knows person exists and in good faith judges the person reasonably available, willing and competent; patient may disqualify family before adjudication (§§ 34-12C-1(7), 34-12C-3).
Decisions limited or excludedFollow known express wishes or good-faith best interests; chapter does not change abortion/sterilization or life-prolonging-treatment withdrawal law (§§ 34-12C-3, 34-12C-8(6)–(7)).
No surrogate or disputed authorityCircuit court may decide, choose a decision-maker or grant other relief on no available person, same-class disagreement or other listed grounds (§§ 34-12C-4, 34-12C-5).

Requirements one by one

When the default route opens

An adult is eligible for another person's decision after one of the statutory incapacity findings, including a good-faith attending-physician determination documented, signed and placed in the medical record (§ 34-12C-2). Under § 34-12C-3, the family order applies when no health-care power-of-attorney agent or guardian exists, or neither is available to consent.

Care or setting covered

“Health care” includes treatment of physical or mental conditions and admission to or personal care in a licensed health-care facility (§ 34-12C-1(3)). Section 34-12C-8 preserves separate laws on emergency care, life-prolonging care, abortion, sterilization and treatment at human-services or developmental centers.

Family and other eligible people

Section 34-12C-3 ranks a spouse who is not legally separated; adult child; parent; adult sibling; grandparent or adult grandchild; adult aunt, uncle, cousin, niece or nephew; and a close friend. A “close friend” is an adult who provided significant care, showed concern and kept regular contact sufficient to know the patient's activities, health and beliefs (§ 34-12C-1(8)).

Decision within one class

A circuit court may intervene when two or more people in one class are available and their decisions are not unanimous (§ 34-12C-4(2)).

Who is available and eligible

A person available to consent is known to the provider and, in the provider's good-faith judgment, reasonably available for consultation, willing and competent (§ 34-12C-1(7)). Before a judicial incapacity adjudication, the person may disqualify a family member in a signed document or by directing a medical-record notation. A family member may sign a delegation to another family member in the same or a succeeding class (§ 34-12C-3).

Decisions limited or excluded

The decision-maker follows the patient's known express wishes and otherwise acts in good faith and the patient's best interest, considering the attending physician's recommendation (§ 34-12C-3). The statute does not alter separate law governing withdrawal of care necessary to prolong life or abortion and sterilization (§ 34-12C-8(6)); it also preserves specialized mental-health treatment law in the named state centers (§ 34-12C-8(7)).

No surrogate or disputed authority

If nobody is available or a same-class disagreement occurs, the circuit court may order care, direct the decision or name a representative; it must make an additional finding listed in § 34-12C-4 and respect known wishes and best interests. Under § 34-12C-5, the law allows the patient, a potential decision-maker, provider or other interested person to petition the circuit court where the person resides or receives care.

What trips people up

The statute allows a signed family delegation to someone at the same or a lower rank, but it does not permit an unsigned handoff (§ 34-12C-3). Same-class disagreement calls for considering the circuit-court route (§ 34-12C-4(2)).

Common questions

Can a close friend consent?

Yes, after the listed family classes, if the friend meets the statutory care and regular-contact definition and is available to consent (§§ 34-12C-1(7)–(8), 34-12C-3(7)).

Must a guardian be appointed before anyone can act?

No. The chapter expressly says it does not require guardian appointment before a health-care decision can be made (§ 34-12C-8(5)).

Statutes and sources

  • S.D. Codified Laws §§ 34-12C-1 through -5 and -8 — definitions, incapacity, order, court route and scope. Current official focused API pages and access dates appear in the statute entries above.

Source links

Every statute quoted above, linked, with the date we checked it.

S.D. Codified Laws § 34-12C-1 · accessed 2026-10-08
S.D. Codified Laws § 34-12C-2 · accessed 2026-10-08
S.D. Codified Laws § 34-12C-3 · accessed 2026-10-08
S.D. Codified Laws § 34-12C-4 · accessed 2026-10-08
S.D. Codified Laws § 34-12C-5 · accessed 2026-10-08
S.D. Codified Laws § 34-12C-8 · accessed 2026-10-08
This page summarizes default health-care decision rules, not advice about an individual patient. Capacity, existing directives, the care setting, and urgent treatment can change who may decide. Check current official law and obtain professional advice for a specific decision.

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