§ 23-12-13 — Individuals authorized to provide informed consent to health care for incapacitated patients and minors - Priority

incapacitated patients and minors - Priority.
1. For purposes of this section:
a. "Incapacitated patient" means an adult unable to understand and appreciate the
nature and consequence of a health care decision, including the benefits, harms,
and reasonable alternatives to proposed health care, and unable to communicate
a health care decision, as certified by the patient's attending physician,
psychiatrist, or psychologist and filed in the patient's medical record.
b. "Minor" means an individual under eighteen years of age.
2. Unless a court of competent jurisdiction determines otherwise, individuals in the
following classes and in the following order of priority may provide informed consent to
health care on behalf of an incapacitated patient:
a. A health care agent appointed through a health care directive under chapter
23-06.5 or a similar instrument executed in another jurisdiction in accordance with
the law in that jurisdiction;
b. An appointed guardian or custodian of the patient under chapter 30.1-28 or a
similar instrument executed in another jurisdiction in accordance with the law in
that jurisdiction;
c. A spouse of the patient who has maintained significant contact with the patient;
d. A child of the patient who is at least eighteen years of age and who has
maintained significant contact with the patient;
e. A parent of the patient, including a stepparent who has maintained significant
contact with the patient;
f. An adult sibling of the patient who has maintained significant contact with the
patient;
g. A grandparent of the patient who has maintained significant contact with the
patient;
h. A grandchild of the patient who is at least eighteen years of age and who has
maintained significant contact with the patient;
i. A close relative or friend of the patient who is at least eighteen years of age and
who has maintained significant contact with the patient; or
j. An interdisciplinary team consisting of at least three health care professionals.
(1) An interdisciplinary team may include an employee or agent of a health care
provider treating an incapacitated patient, including a member of the ethics

committee, provided a member of the team is not directly involved with the
treatment of the incapacitated patient.
(2) If consent is provided under this subdivision, a health care provider shall
continue good-faith efforts to identify and locate an individual in a preceding
level of priority.
3. Unless otherwise determined by court order, a parent may make health care decisions
for the parent's minor child. Individuals in the following classes and in the following
order of priority may provide informed consent to health care on behalf of a minor
patient if a parent is unable to provide informed consent:
a. A guardian acting under a court order specifically authorizing the guardian to
make health care decisions for the minor;
b. An appointed guardian or custodian of the minor;
c. A noncustodial parent of the minor, including a stepparent who has maintained
significant contact with the patient;
d. An adult sibling of the minor who has maintained significant contact with the
minor;
e. A grandparent of the minor who has maintained significant contact with the minor;
f. A close relative or friend of the minor who is at least eighteen years of age and
who has maintained significant contact with the minor; or
g. An interdisciplinary team consisting of at least three health care professionals.
(1) An interdisciplinary team may include an employee or agent of a health care
provider treating a minor, including a member of the ethics committee,
provided a member of the team is not directly involved with the treatment of
the minor.
(2) If consent is provided under this subdivision, a health care provider shall
continue good-faith efforts to identify and locate an individual in a preceding
level of priority.
4. A health care provider seeking informed consent for proposed health care for an
incapacitated patient or a minor who is unable to consent must make reasonable
efforts to locate and secure authorization for the health care from a competent
individual in the first or succeeding class identified in subsection 2 for an incapacitated
patient or subsection 3 for a minor. If the health care provider is unable to locate such
individual, authorization may be given by any individual in the next class in the order of
descending priority. An individual identified in subsection 2 for an incapacitated patient
or subsection 3 for a minor may not provide informed consent to health care if an
individual of higher priority has refused to give such authorization.
5. Before any individual authorized to provide informed consent under this section
exercises that authority, the individual must first determine in good faith that the
patient, if not incapacitated, would consent to the proposed health care. If such a
determination cannot be made, the decision to consent to the proposed health care
may be made only after determining that the proposed health care is in the patient's
best interests.
6. An individual authorized to provide informed consent in accordance with this section
may not provide consent for sterilization, abortion, or psychosurgery or for admission
to a state mental health facility for a period of more than forty-five days without a
mental health proceeding or other court order.
7. If a patient who is determined by a physician, psychiatrist, or psychologist to be an
incapacitated patient, or an individual interested in the patient's welfare, objects to a
determination of incapacity made in accordance with this section, a court hearing
pursuant to chapter 30.1-28 must be held to determine the issue of incapacity.