South Carolina Adult Health Care Consent Act: Who Decides When Your Parent Can't

When No Advance Directive Exists

Your parent is in a South Carolina hospital, unable to communicate or make decisions, and there's no healthcare power of attorney on file. What happens next? The hospital doesn't just pick a family member at random. South Carolina's Adult Health Care Consent Act (S.C. Code Ann. § 44-66-10 et seq.) establishes a strict legal hierarchy for who can authorize medical treatment — including discharge decisions — when a patient lacks capacity.

This law matters most during a hospital discharge crisis. If your parent can't consent to a transfer to a skilled nursing facility, can't agree to home health services, or can't sign their own discharge paperwork, the consent act determines who speaks for them without requiring anyone to go to court first.

The Priority Hierarchy

The Adult Health Care Consent Act creates a specific order of priority for surrogate decision-makers. The hospital social worker will work down this list until they find an available, willing person:

1. A court-appointed guardian with healthcare decision-making authority
2. An attorney-in-fact (agent) named in a healthcare power of attorney
3. A spouse (not legally separated)
4. An adult child — or a majority of available adult children if there are multiple
5. A parent
6. An adult sibling — or a majority of available adult siblings
7. A grandparent — or a majority of available grandparents if there are multiple
8. Any other adult relative by blood or marriage who is reasonably believed to have a close personal relationship with the patient — or a majority of available adult relatives if there are multiple
9. A person given authority to make health care decisions for the patient by another statutory provision
10. A person with an established relationship with the patient who can reliably convey the patient's wishes and is acting in good faith, if the people above are unavailable

Two licensed physicians who have each examined the patient must first certify that the patient lacks the capacity to make their own healthcare decisions. In an emergency, a responsible health care professional may make that certification in writing if delaying care to obtain the physicians' certifications would be detrimental to the patient's health.

The "Majority of Adult Children" Problem

The hierarchy works smoothly when there's one adult child or when siblings agree. It breaks down when multiple adult children disagree about a parent's care — and in hospital discharge situations, disagreements are common.

If your parent has three adult children and two agree on a discharge plan but one objects, the two who agree constitute the majority and can legally authorize the decision under the consent act. The dissenting sibling cannot override them without going to court.

But the practical reality is messier. Hospital staff sometimes refuse to proceed when any family member objects vocally, even if the legal majority is clear. They're worried about liability. In those situations, having a reference to the specific statute (S.C. Code § 44-66-30) and the majority-rules provision can clarify the process; if people of equal priority disagree, the matter may require a Probate Court petition.

What the Consent Act Doesn't Cover

The Adult Health Care Consent Act authorizes healthcare decisions — treatment consent, discharge authorization, placement in care facilities. It does not give surrogate decision-makers authority to:

• Access or manage the patient's financial accounts
• Sign nursing home admission contracts as the patient
• Apply for Medicaid on the patient's behalf
• Sell or transfer the patient's property

For financial decisions, you need a Durable Financial Power of Attorney — and if your parent has already lost capacity, it's too late to create one. If no valid financial authority exists, a conservatorship petition through the County Probate Court may be necessary; the process requires a $150 filing fee, a SLED background check, and a formal court hearing.

This gap between healthcare authority and financial authority catches families off guard during hospital discharges. The consent act lets you authorize a transfer to a nursing home, but it doesn't let you access the bank accounts needed to pay for it or submit the Medicaid application.

How This Affects Hospital Discharge

During a hospital discharge, the Adult Health Care Consent Act plays several specific roles:

• Signing the discharge papers: The person highest on the priority list signs on the patient's behalf when the patient can't sign themselves
• Choosing the post-acute setting: SNF placement, home health setup, or hospice enrollment all require consent
• Authorizing medical procedures: If the post-discharge plan involves a feeding tube, medication changes, or a do-not-resuscitate order, the surrogate makes those calls
• Appealing a discharge: If the family believes the discharge is premature, the surrogate can file a fast-track appeal through Acentra Health (1-888-317-0751), the designated QIO for South Carolina

The surrogate's decisions must reflect what the patient would have wanted (substituted judgment) or, if the patient's wishes are unknown, what serves the patient's best interests.

The Case for Getting Documents Done Before a Crisis

The Adult Health Care Consent Act is a safety net, not a first choice. A properly executed South Carolina Healthcare Power of Attorney gives your parent's chosen agent clearer authority, avoids the two-physician certification requirement, and prevents sibling disputes about who has priority.

South Carolina's healthcare power of attorney has strict witness requirements — two witnesses who cannot be the designated agent, the treating physician, a medical facility employee (with limited exceptions), anyone responsible for the patient's medical bills, or an heir to the patient's estate. Getting these documents done while your parent still has capacity is dramatically simpler than navigating the consent act hierarchy during a hospital crisis.

Our South Carolina Hospital Discharge Guide covers both scenarios — how to invoke the consent act when no documents exist, and the legal decision-making verification process that hospital social workers follow during discharge planning. When a hospitalization happens suddenly and the documents aren't in place, understanding the consent act hierarchy can prevent days of delay while family members argue about who has authority.

See more South Carolina guides →