Living will requirements in South Dakota

Which document this is

South Dakota’s living will has a name of its own: the Declaration, created under the state’s Living Wills chapter. It is a written statement of the life-sustaining treatment you do or do not want if you are ever diagnosed with a terminal condition and can no longer speak for yourself. South Dakota keeps a second, entirely separate document for naming someone to decide on your behalf: the Durable Power of Attorney for Health Care. The person you name in it is your attorney-in-fact, though the statute also calls that same person your agent throughout its own text.

The two documents live in different parts of South Dakota’s code. The Declaration has a chapter to itself, the Living Wills chapter. The Durable Power of Attorney for Health Care does not; it is a single section tucked inside a general chapter called Termination of Agency, alongside the state’s ordinary financial power-of-attorney rules. If you sign both and they conflict, South Dakota’s law says which one wins: whichever document you executed later controls, to the extent the two disagree.

This is the pairing Myend’s Healthcare Directive prepares for South Dakota: a Declaration for your wishes, and a Durable Power of Attorney for Health Care for your attorney-in-fact, each signed the way its own statute requires. The Declaration’s form is optional. South Dakota’s statute prints a sample you may use, but nothing requires you to use its exact wording.

Who can make a South Dakota living will

South Dakota’s Declaration statute asks you to be a “competent adult.” That is the entire standard printed in the section that lets you sign one, and it never attaches a number. The number comes from South Dakota’s code-wide definitions instead, which define an adult as any person who is not a minor, and define minors as persons under eighteen years of age. So the age for a South Dakota Declaration is 18.

The Durable Power of Attorney for Health Care states no age of its own either, and the same two definitions reach it. Its witnesses are held to the same line: the statute asks for two other adult individuals, which is the same 18.

Signing it so it counts

South Dakota gives the Declaration and the Durable Power of Attorney for Health Care the same signing choice, in nearly the same words in both statutes: two adult witnesses, or a notary public instead. Pick one route for each document. You do not need both, and a notary is never required on top of witnesses.

The Declaration

1. 1You sign

   You sign and date the Declaration yourself, or direct someone else to sign it for you, in your presence, if you are unable to sign it yourself.

2. 2Two witnesses, or a notary instead

   You sign in front of two adults who then sign as witnesses, or you skip the witnesses entirely and have a notary public witness your signature and notarize the Declaration on the spot. Either route makes it valid on its own.

3. 3Who can witness

   South Dakota’s statute asks only that a witness be an adult. It names no one who is disqualified: not a relative, not an heir, not your attorney-in-fact, not your physician, not an employee of the facility treating you. That is a shorter list than most states print, and it is worth knowing what it does not do. It does not tell you a relative or a beneficiary is a wise choice for a witness, only that South Dakota’s own statute does not stop you from choosing one.

If you choose the notary route instead, the two witness lines are replaced by a notary acknowledgment block, and you do not need witnesses at all.

The Durable Power of Attorney for Health Care

Naming your attorney-in-fact is a separate signing, on its own paper, and South Dakota gives it the identical choice. The statute’s own words for the power of attorney read almost the same as the Declaration’s: your signature “shall be witnessed by two other adult individuals or by a notary public.”

As with the Declaration, a notary public may stand in for the two witnesses on the power of attorney as well.

Naming your attorney-in-fact

The Durable Power of Attorney for Health Care is where you name your attorney-in-fact, the term South Dakota’s statute uses most often, alongside “agent,” for the person who makes health care decisions for you once the document takes effect. South Dakota’s statute is unusually open about who that can be. Its own words are that a principal “may designate any other person” as attorney-in-fact for health care decisions, and neither that section nor any of the sections around it names a category that is barred: not your treating physician, not an employee of your health care facility, not the facility’s owner or operator.

What the statute does limit is what your attorney-in-fact may do once the document is live. They may make any health care decision you could make yourself, in line with accepted medical standards, weighing your attending physician’s recommendation, what you would have chosen, and your best interests. They may never authorize comfort care to be withheld or withdrawn. And artificial nutrition or hydration may be withheld or withdrawn only where one of six listed conditions holds, among them that your death is imminent and the nutrition is not needed for comfort, that your body cannot assimilate it, that its burden outweighs its benefit, or that you said so yourself in the document.

When it takes effect

Your Declaration becomes operative once your attending physician determines that you are in a terminal condition, defined in the statute as an incurable or irreversible condition where death is imminent without life-sustaining treatment, or a coma or permanent unconsciousness meeting the statute’s own test, death is imminent, and you are no longer able to communicate your own decisions about medical care. A single attending physician’s determination is enough; South Dakota does not ask for a second physician to confirm it for the Declaration to take effect.

The Durable Power of Attorney for Health Care runs on its own trigger. Your attorney-in-fact may not make a health care decision at any time your attending physician has determined, in good faith, that you have decisional capacity. Put the other way, your attorney-in-fact’s authority begins once your attending physician determines you lack that capacity, and here too a single physician’s determination is what the statute asks for.

If you are pregnant

South Dakota does not set your Declaration aside automatically the way some states do. Life-sustaining treatment and artificial nutrition and hydration continue to be provided to a pregnant woman by default. The exception only opens if your attending physician and one other physician who has examined you both certify, to a reasonable degree of medical certainty and in your medical chart, that continuing treatment will not maintain you in a way that permits the pregnancy to continue to a live birth, or that it will be physically harmful to you, or that it will prolong severe pain that medication cannot relieve. Any one of those three findings, certified by both physicians, opens the exception.

The Durable Power of Attorney for Health Care carries a near-identical rule for your attorney-in-fact’s authority during a pregnancy, built the same way: treatment continues by default, and the same two-physician certification on the same three grounds is what changes that.

Changing or cancelling it

You can revoke your Declaration at any time and in any manner, without regard to your mental or physical condition. Once your attending physician or another health care provider learns of the revocation, they have to make it part of your medical record.

The Durable Power of Attorney for Health Care is different. It has no revocation section written for it, the way the Declaration does, and it is not covered by South Dakota’s Uniform Power of Attorney Act either, because that act says plainly that it does not apply to a power to make health care decisions. What governs instead is the general agency chapter it lives in, which ends an agency on revocation by the principal, on the principal’s death, and on the agent’s death, renunciation, or incapacity, as to everyone who has notice. One further rule is written specifically for this document: if a court later appoints a guardian of your person, the health care power of attorney terminates at the moment of that appointment, and the guardian has to follow whatever you wrote in it about your medical and end-of-life care.

Because a revocation only binds people who have notice of it, telling your attorney-in-fact and your physician directly, in writing where you can, and destroying or marking the old copies, is what actually makes a cancellation stick for either document.

Making sure it is found

South Dakota does not run a state registry for either document. Neither the Living Wills chapter nor the Durable Power of Attorney for Health Care statute sets one up. That makes copies your real safeguard: give one of each to your attorney-in-fact, your physician, and the hospital you are most likely to use, and keep the signed originals somewhere your family knows to look.

A Declaration signed elsewhere can still count here. South Dakota’s chapter says a declaration is valid for its purposes if it meets the execution requirements of the jurisdiction where you were then a resident, or of the jurisdiction where you signed it, or of South Dakota’s own chapter, even if you signed it before July 1, 1991. Three routes, any one of which is enough. The chapter says nothing at all about an out-of-state health care power of attorney, so if you split time between South Dakota and another state, keeping a South Dakota-compliant pair on file here alongside whatever the other state expects is the safer route for the agent document in particular.

This is not a POLST

A POLST-style medical order is a different kind of document from either your Declaration or your Durable Power of Attorney for Health Care. South Dakota is generally understood to run its own version of this program, known as MOST, Medical Orders for Scope of Treatment, though neither the Living Wills chapter nor the health care power of attorney statute mentions it. A clinician signs a MOST order together with someone who is already facing serious illness, and it becomes a set of standing medical orders meant to travel with that person between hospital, nursing facility, home and ambulance. A Declaration and a Durable Power of Attorney for Health Care, by contrast, are something you put in place in advance, for a future you cannot yet see. Myend prepares the Declaration and the Durable Power of Attorney for Health Care. It does not, and cannot, produce a MOST order or any other POLST-style medical order, because that has to come from a treating clinician.

What is different about South Dakota

South Dakota writes no one out. Its witness rule stops at “adult,” and its attorney-in-fact rule names no one who is barred from serving.

Most states that let anyone witness a Declaration still rule out the person’s own agent, close relatives, or the physician and facility staff caring for them. South Dakota’s statute does none of that, and neither does the sample form it prints. The only qualification for a witness is being an adult. The Durable Power of Attorney for Health Care is written the same open way. No section bars the treating physician, a facility employee, or the facility’s owner from serving as attorney-in-fact. Two disqualification lists that most states print somewhere in their advance-directive law simply are not in South Dakota’s.

The two documents are also structured unlike most other two-document states. Rather than giving the Declaration and the power of attorney their own dedicated chapters, South Dakota tucks the Durable Power of Attorney for Health Care into a single section of a general chapter that otherwise governs ending an agency relationship of any kind, financial or medical. And where the two documents might otherwise leave you wondering which one governs, South Dakota answers it directly: whichever one you signed later controls, wherever the two disagree.

The pregnancy rule follows a middle path too. South Dakota does not suspend your Declaration for the length of a pregnancy the moment your physician learns of it, the way some states do. Treatment keeps being provided by default, and it takes two physicians certifying one of three specific medical findings to change that, the same test applied to both the Declaration and the Durable Power of Attorney for Health Care.

Common questions

Sources and review