1/1/2026Enacted by Chapter 439, 2025 General Session2025Default surrogate.A default surrogate may make a health care decision for an individual who lacks capacity to make health care decisions and for whom an agent, or guardian authorized to make health care decisions, has not been appointed or is not reasonably available.Unless the individual has an advance health care directive that indicates otherwise, a member of the following classes, in descending order of priority, who is reasonably available and not disqualified under Section 75A-9-113, may act as a default surrogate for the individual:an adult the individual has identified, other than in a power of attorney for health care, to make a health care decision for the individual if the individual cannot make the decision;the individual's spouse unless:a petition for annulment, divorce, dissolution of marriage, legal separation, or termination has been filed and not dismissed or withdrawn;a decree of annulment, divorce, dissolution of marriage, legal separation, or termination has been issued;the individual and the spouse have agreed in a record to a legal separation; orthe spouse has willfully deserted the individual for more than one year;the individual's adult child or parent;the individual's cohabitant;the individual's adult sibling;the individual's adult grandchild or grandparent;an adult not listed in Subsections (2)(a) through (f) who has assisted the individual with supported decision making routinely during the preceding six months;the individual's adult stepchild not listed in Subsections (2)(a) through (g) whom the individual actively parented during the stepchild's minor years and with whom the individual has an ongoing relationship;an adult not listed in Subsections (2)(a) through (h) who has exhibited special care and concern for the individual and is familiar with the individual's personal values; ora physician designated in accordance with Subsection (6).A responsible health care professional may require an individual who assumes authority to act as a default surrogate to provide a declaration in a record under penalty of perjury stating facts and circumstances reasonably sufficient to establish the authority.The Department of Health and Human Services shall create a uniform form to be used in accordance with Subsection (3)(a).If a responsible health care professional reasonably determines that an individual who assumed authority to act as a default surrogate is not willing or able to comply with a duty under Section 75A-9-116 or fails to comply with the duty in a timely manner, the professional may recognize the individual next in priority under Subsection (2) as the default surrogate.A health care decision made by a default surrogate is effective without judicial approval.If an individual resides in or is receiving care in a health care institution, and is determined to lack capacity to make a health care decision, the responsible health care professional may designate a willing physician to make the decision on behalf of the individual if:the responsible health care professional, or person acting under the supervision of the responsible health care professional, after using best efforts cannot identify and locate:an agent who has been appointed by the individual to make health care decisions;a guardian authorized to make health care decisions for the individual; ora default surrogate under Subsections (2)(a) through (i);the responsible health care professional has consulted with and obtained a consensus on the designation with the medical ethics committee of the health care institution where the individual resides or is receiving care; orif no medical ethics committee exists within the health care institution, has consulted with and obtained consensus from a similar entity utilized by the health care institution;the physician designated to act as default surrogate under this subsection is not:providing health care to the individual;under the actual or constructive authority of the responsible health care professional;a family member or cohabitant of the responsible health care professional; ordisqualified from acting as default surrogate under Section 75A-9-113;the responsible health care professional informs the individual of the designation of a willing physician, the identity of the designated physician, and of the individual's right to object to the designation; andthe identity of the physician designated by the responsible health care professional is documented in the individual's medical record.The power of a physician designated under Subsection (6) to act as default surrogate terminates if:a person listed in Subsections (2)(a) through (i) is identified and located and is reasonably available and willing to serve as default surrogate;the individual no longer is residing in or receiving care from the health care institution; orthe conditions in Subsection (1) do not exist.If the authority of the responsible health care professional to make the designation under Subsection (6) or the authority of the physician designated by the responsible health care professional to make a health care decision for the individual terminates for any reason, including a reason designated in Subsection (7), the responsible health care professional shall document the termination and the reason in the individual's medical record.In making a health care decision on behalf of the individual, a physician designated to act as default surrogate under Subsection (6):shall comply with the duties of a default surrogate set forth in Section 75A-9-116; andmay consult with the medical ethics committee or similar entity and rely on the committee or entity's evaluation of the individual's best interest if the goals, preferences, and wishes of the individual regarding a health care decision are not known or reasonably ascertainable by the physician.