2018 Arkansas Code
Title 20 - Public Health and Welfare
Subtitle 2 - Health and Safety
Chapter 6 - General Provisions
Subchapter 1 - Arkansas Healthcare Decisions Act
§ 20-6-105. Designation of surrogate

(a)

• (1) An adult, married minor, or emancipated minor may designate an individual to act as surrogate by personally informing the supervising healthcare provider.

• (2) The designation may be oral or written.

(b) A surrogate may make a healthcare decision for a principal who is an adult or emancipated minor only if:

• (1) The principal has been determined by a licensed physician to lack capacity; and

• (2) An agent or guardian has not been appointed or the agent or guardian is not reasonably available.

(c) (1) The supervising healthcare provider shall identify a surrogate for the principal and document the appointment in the clinical record of the institution or institutions at which the principal is receiving health care if the principal:

• (A) Lacks capacity;

• (B) Has not appointed an agent or the agent is not reasonably available;

• (C) Has not designated a surrogate or the surrogate is not reasonably available; and

• (D) Does not have a guardian or the guardian is not reasonably available.

  • (2) (A) The principal's surrogate shall be an adult who:

    • (i) Has exhibited special care and concern for the principal;

    • (ii) Is familiar with the principal's personal values;

    • (iii) Is reasonably available; and

    • (iv) Is willing to serve.

      • (B) A person who is the subject of a protective order or other court order that directs that person to avoid contact with the principal is not eligible to serve as the principal's surrogate.

  • (3) In identifying the person best qualified to serve as the surrogate for the principal, the supervising healthcare provider:

    • (A) Shall consider the proposed surrogate's:

      • (i) Ability to make decisions either in accordance with the known wishes of the principal or in accordance with the principal's best interests;

      • (ii) Frequency of contact with the principal before and during the incapacitating illness; and

      • (iii) Demonstrated care and concern; and

    • (B) May consider the proposed surrogate's:

      • (i) Availability to visit the principal during his or her illness; and

      • (ii) Availability to fully participate in the decision-making process.

  • (4) When identifying the person best qualified to serve as the surrogate for the principal, the supervising healthcare provider may proceed in order of descending preference for service as a surrogate to:

    • (A) The principal's spouse, unless legally separated;

    • (B) The principal's adult child;

    • (C) The principal's parent;

    • (D) The principal's adult sibling;

    • (E) Any other adult relative of the principal; or

    • (F) Any other adult person who satisfies the requirements of subdivision (c)(2) of this section.

  • (5) If none of the individuals eligible to act as a surrogate under this subsection are reasonably available and informed consent would typically be sought from the principal, the supervising healthcare provider may make healthcare decisions for the principal after the supervising healthcare provider:

    • (A) Consults with and obtains the recommendations of an institution's ethics officers or ethics committee; or

    • (B) Obtains concurrence from a second physician who is:

      • (i) Not directly involved in the principal's health care;

      • (ii) Does not serve in a capacity of decision making, influence, or responsibility over the designated physician; and

      • (iii) Does not serve in a capacity under the authority of the designated physician's decision making, influence, or responsibility.

  • (6)

    • (A) In the event of a challenge to the identification of the surrogate or the authority of the surrogate to act, it is a rebuttable presumption that the selection of the surrogate was valid.

    • (B) A person who challenges the selection of the surrogate has the burden of proving the invalidity of that selection by a preponderance of the evidence.

(d) (1) Except as provided in subdivision (d)(2) of this section:

• (A) Neither the treating healthcare provider nor an employee of the treating healthcare provider, nor an operator of a healthcare institution, nor an employee of an operator of a healthcare institution may be designated as a surrogate; and

• (B) A healthcare provider or employee of a healthcare provider may not act as a surrogate if the healthcare provider becomes the principal's treating healthcare provider.

  • (2) An employee of the treating healthcare provider or an employee of an operator of a healthcare institution may be designated as a surrogate if:

    • (A) The employee so designated is a relative of the principal by blood, marriage, or adoption; and

    • (B) The other requirements of this section are satisfied.

(e) A healthcare provider may require an individual claiming the right to act as surrogate for a principal to provide a written declaration under penalty of perjury stating facts and circumstances reasonably sufficient to establish the claimed authority.