Living will requirements in South Carolina

Which document is this, really

Most South Carolinians call this document a living will. The statute itself calls it the Declaration of a Desire for a Natural Death, part of the state’s Death with Dignity Act, and it is a written statement of the treatment you do and do not want if you are ever diagnosed with a terminal condition or fall into a state of permanent unconsciousness. South Carolina keeps a second, entirely separate statute for naming someone to make health care decisions on your behalf: the Health Care Power of Attorney, signed on its own paper under its own act. The person you name in it is your agent.

The two documents are not interchangeable, and South Carolina is direct about how they work together. If you have a valid Declaration, it governs wherever it applies, in full. Your Health Care Power of Attorney agent only steps in to decide the things your Declaration does not cover. The Declaration does let you name a narrower agent inside itself, but that person’s only power is to ask a court to enforce your wishes if a provider will not follow them, or, on the state’s printed form, to revoke the Declaration; neither role lets that person make day-to-day health care decisions for you. For that, you need the separate Health Care Power of Attorney.

Myend’s Healthcare Directive builds both pieces of that South Carolina pairing: a Declaration carrying your treatment wishes, and a Health Care Power of Attorney naming your agent, each formatted to its own statute’s signing rule.

Who can make a South Carolina living will

South Carolina asks you to be 18 years of age or older to adopt a Declaration. The statute does not layer a separate capacity test on top of that age line; in practice you sign as an adult who understands what the document says and what it does.

The Health Care Power of Attorney carries its own age line, written into its own act: a principal must be eighteen years of age or older and of sound mind. Both documents rest on the same threshold, each stated in its own statute rather than borrowed from the other.

Signing it so it counts

South Carolina runs two separate signing ceremonies, one for each document, and asks more of the Declaration than most states ask of a living will at all.

The Declaration of a Desire for a Natural Death

1. 1You sign

   You sign and date the Declaration in the presence of an officer authorized to administer oaths and two witnesses.

2. 2The officer and two witnesses

   South Carolina wants a notary or other officer authorized to administer oaths present for the signing, in addition to your two witnesses. That officer is allowed to double as one of the two witnesses, so the ceremony can work with as few as two people total.

3. 3The affidavit

   Your witnesses also sign a sworn affidavit, subscribed by both of them and sworn to by at least one, in front of you, each other, and the officer.

Your witnesses have to fit South Carolina’s list. To the extent they know their own status, a witness cannot be related to you by blood, marriage or adoption, cannot be directly financially responsible for your medical care, cannot be in line to inherit any part of your estate under a will or by intestate succession, cannot be a beneficiary of your life insurance policy, and cannot hold a claim against your estate. No more than one witness may work for the health facility where you are a patient, and none may be your attending physician or their employee. If you are a hospital patient or nursing-care-facility resident when you sign, an Ombudsman designated by the State Ombudsman must be one of your two witnesses.

The Health Care Power of Attorney

Naming your agent is a separate signing, on its own paper, and it asks for less. It needs two witnesses and does not mention a notary or an oath officer at all.

The witness rules mostly repeat the Declaration’s list, the family, financial-responsibility, estate and life-insurance disqualifications carry over, plus one more rule that matters here specifically: nobody named as your agent or successor agent may witness your own Health Care Power of Attorney. As with the Declaration, no more than one witness may work for your health care facility, and none may be your attending physician or their employee.

Naming your agent

The Health Care Power of Attorney is where you name the person authorized to make health care decisions on your behalf, your agent. South Carolina sets real eligibility rules for who that can be. Your agent must be 18 years of age or older and of sound mind. They cannot be a health care provider, or an employee of a provider, who has a provider-patient relationship with you at the time you sign the document, and they cannot be an employee of the nursing care facility where you live. A spouse of any of those people is disqualified too, unless that spouse is also your relative.

The Declaration lets you name a second, much narrower agent inside itself. That person’s only job is to petition the court of common pleas to make sure your wishes are honored if a provider will not follow your Declaration, and the state’s printed form also lets you separately name someone with the power to revoke it. Neither role lets that person make ordinary health care decisions for you; that authority belongs to the agent named in your Health Care Power of Attorney.

When it takes effect

Your Declaration becomes effective once two physicians who have personally examined you, one of them your attending physician and the other a different physician, certify that your present condition is terminal or that you are permanently unconscious. South Carolina then adds two waiting periods on top of that certification. A certification of permanent unconsciousness cannot be made until you have been unconscious for ninety consecutive days, unless your cortex has suffered massive destruction or atrophy shown by neurodiagnostic studies or gross inspection of the brain, or some other feature of your condition allows that diagnosis to be made with a high degree of medical certainty. And once a terminal or permanently unconscious diagnosis is made, active treatment has to be given for at least six hours before your physician may act on the Declaration at all.

The Health Care Power of Attorney runs on a different switch. Its own form creates a power that takes effect upon, and only during, any period of mental incompetence, measured by the standard South Carolina uses for an inability to consent to health care, with one shortcut written in: your agent’s own certification of your mental incompetence may stand in for a second physician’s. Where the certifying physician records that your incompetence is permanent or of extended duration and covers all health care decisions or whole categories of them, nothing further has to be certified for as long as that lasts, unless your agent or your attending physician comes to believe you may have regained capacity.

Where both documents exist, your Declaration governs any situation it covers, and your agent’s authority to decide reaches only the situations your Declaration does not address.

If you are pregnant

South Carolina sets your Declaration aside for the rest of a pregnancy, without qualification. Once you have been diagnosed as pregnant, the Declaration stops being effective for as long as the pregnancy lasts. There is no viability test, no separate medical certification, and no partial version of the rule; it runs for the whole pregnancy.

Changing or cancelling it

You can revoke your Declaration five ways: destroy or deface it yourself, or have someone do it in your presence and at your direction; sign and date a written revocation; revoke it orally; have the person you separately named with the power to revoke do it for you, which that person may do only while you are incompetent to do it yourself; or sign a new Declaration. Whichever method you use, the state’s own form puts the condition in capitals: a revocation is not effective until it is communicated to your attending physician.

The Health Care Power of Attorney has a revocation section of its own, and it is short. You can revoke it by a writing, an oral statement, or any other act that notifies your agent, or a health care provider responsible for your care, that you specifically intend to revoke it. Signing a later Health Care Power of Attorney revokes the earlier one, and so does a later general durable power of attorney that says so or that cannot be squared with the health care one. A provider who is told of the revocation has to record it in your medical record immediately and notify your agent, your attending physician, and everyone else responsible for your care.

Making sure it is found

Neither South Carolina act creates a state registry, for the Declaration or for the Health Care Power of Attorney. Copies are your real safeguard for both documents: give one of each to your agent, your physician, and the hospital you are most likely to use, and keep the signed originals somewhere your family knows to look.

If you signed your Declaration in another state, South Carolina still treats you as a declarant, as long as your out-of-state declaration expresses substantially the same intent as South Carolina’s own form.

This is not a POLST

South Carolina’s directive is not a medical order. A POLST-style order has to be signed directly by a clinician, together with a patient who is already seriously ill, and providers keep it where it can be acted on immediately in an emergency. Your Declaration and your Health Care Power of Attorney work on a different timeline: you complete them ahead of time, with no clinician present, for a moment you cannot yet predict. South Carolina runs a program of its own, and the hospital, hospice or nursing facility treating you will know what it is called there; ask them for it by name. Whatever the name, Myend does not prepare it. Myend prepares the Declaration and the Health Care Power of Attorney; the medical order itself has to come from whoever is treating you.

What is different about South Carolina

South Carolina hands you two documents, and asks the harder of the two for both witnesses and a notary.

South Carolina keeps its Declaration and its Health Care Power of Attorney firmly apart, each under its own act, each with its own signing rule, and the law is direct about how they interact: your Declaration controls whenever it applies, and your Health Care Power of Attorney agent only decides what your Declaration leaves open. Naming an agent inside the Declaration itself, as the statute allows, gets you a court-enforcement power or a power to revoke, not a decision-maker; the Health Care Power of Attorney is the document that actually gives someone authority to decide for you.

The signing rules split the same way. South Carolina is one of just three states whose living will asks for both two witnesses and a notary or other officer authorized to administer oaths, though that officer is allowed to double as a witness. The Health Care Power of Attorney asks for far less: two witnesses and no notary at all, though its own witness list adds a rule the Declaration does not carry, your named agent cannot witness the document that appoints them.

Pregnancy reaches both documents, not just one. While you are pregnant, your Declaration is not effective at all, and your Health Care Power of Attorney agent cannot use it to withhold or withdraw life-sustaining procedures either, though the statute is careful to say your agent keeps every other authority you gave them, obstetrical care included.

Common questions

Sources and review