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An advance directive in South Dakota assists individuals, known as principals, with advance care planning for their future medical decisions. This document allows principals to include a living will and outline their preferences for medical treatments, such as life-sustaining treatments, organ donations, and other healthcare decisions.
It also provides the option to include a medical power of attorney, also referred to as durable power of attorney for health care, and authorize a designated individual to make medical decisions on the principal's behalf if they become incapacitated.
Signing Requirements for South Dakota Advance Health Care Directive
When creating an advance directive form in South Dakota, the principal must follow specific signing requirements to ensure the document is legally valid. The requirements are stated in Sections 59-7-2.1 and 34-12D-2 of the South Dakota Codified Law and are as follows:
Signing Requirements for South Dakota
The principal must sign the advance directive or direct another individual to sign it in their conscious presence.
The signed document must be witnessed by two adult individuals or notarized by a notary public.
If the principal designates an attorney-in-fact (or agent) to make health care decisions, a power of attorney for health care must be signed in the same manner, with either two adult witnesses or a notary public.
Moreover, if an advance directive for health care includes a declaration regarding the withholding or withdrawing life-sustaining treatment, such declaration must be signed by the declarant or by someone at their direction and witnessed by two adults or notarized as well.
If the declaration addresses artificial nutrition and hydration, it must clearly state the declarant's preferences. If no preferences are specified, the provision or withholding of nutrition and hydration will be governed by South Dakota state laws.
South Dakota Advance Health Care Directive Revocation & Changing
South Dakota advance directive becomes effective only when it’s determined that the principal lacks decision-making capacity. A physician or authorized medical professional must assess and document this lack of capacity in the individual’s medical record before the directives or agent decisions can take effect.
According to Section 34-12H-9, a principal with decision-making capacity can revoke advance directive for health care at any time by:
Directive Revocation and Changes
Destroying or defacing an advance directive form with the intent to revoke it
Providing a written revocation that is signed and dated
Expressing intent to revoke it orally, in the presence of a witness aged 18 or older, who must confirm this in writing by signing and dating it
The revocation takes effect as soon as it is communicated to the health care provider, who must record the date and time of the notification in the principal’s medical record.
Additional Legal Considerations for South Dakota Advance Health Care Directive
According to Section 34-12H-6, a health care advance directive created in another state that complies with the requirements in that state is valid in South Dakota.
As stated in Section 34-12H-10, if a health care provider refuses to comply with the advance directive’s provision, they must allow the patient to be transferred to another health care provider or facility willing to honor the advance directive. Until the transfer is completed, the provider is obligated to continue caring for the patient to ensure their safety and well-being.
Section 34-12H-8 specifies that if there is a conflict between the principal’s advance directives and other directives, such as oral statements, the health care provider is required to follow the most recent instruction given by the principal.
How to Choose a Health Care Agent in South Dakota
To choose a South Dakota health care proxy (agent), select a competent adult whom you trust and who understands your values and preferences. An agent could be a family member, close friend, or lawyer. It is crucial that your agent is reliable and willing to advocate for your best interest.
While there are no specific prohibitions in South Dakota Codified Law, it’s recommended to avoid naming your health care provider or their employees as your agent unless they are a close relative.
What Happens if You Don’t Have an Advance Directive in South Dakota?
If you don't have an advance directive in South Dakota and cannot communicate your wishes, there will be no clear instructions for your healthcare agent or family members to follow. In these situations, doctors will decide about your treatment in consultation with your family.
However, their decisions may not align with your personal preferences, which could lead to disagreements or uncertainty about what you would have wanted.