Default Health-Care Surrogate Priority in South Dakota
At a glance
| When the default route opens | Adult 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 covered | Physical or mental care and licensed-facility admission/personal care; chapter excepts specialized treatment areas (§§ 34-12C-1(3), 34-12C-8). |
| Guardian or appointed agent | Available health-care power-of-attorney agent or guardian precedes the statutory family list (§ 34-12C-3). |
| Family and partner order | Spouse 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 person | Close 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 class | Nonunanimous decisions by two or more available same-class people allow circuit-court intervention (§ 34-12C-4(2)). |
| Who is available and eligible | Provider 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 excluded | Follow 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 authority | Circuit 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.
What does South Dakota law mean for your facts?
You just read the general rule. Ask your own question and see which parts of current South Dakota law apply to your situation, with citations you can check.
Opens in Ezel Pro.
- Starts from the statutes this survey is built on
- Cites every source it relies on, so you can verify it
- Chat, drafting and research in one workspace