South Dakota Healthcare Power of Attorney Requirements
South Dakota's durable power of attorney for health care does not get its own statutory chapter.
Introduction
South Dakota's durable power of attorney for health care does not get its own statutory chapter. Its rules, Sections 59-7-2.1 through 59-7-11, are layered into Chapter 59-7 of the South Dakota Codified Laws, a chapter titled Termination of Agency that otherwise covers ordinary agency law, and the Code never gives the document its own distinct name or statutory form, unlike Texas's Medical Power of Attorney or New York's Health Care Proxy. What these sections let you do is name someone you trust, called an agent or attorney-in-fact, to make health care decisions for you if you are ever unable to make them yourself. This document exists alongside, not in place of, a financial power of attorney, and is limited to health care decisions. Money, property, and bills are matters it does not reach. Your agent's authority to actually decide for you does not begin the moment you sign. It begins only when your attending physician determines, in good faith, that you lack decisional capacity, and it ends automatically the moment your physician determines you have regained capacity. South Dakota gives you two ways to make the document legally valid. You can sign it in front of two adult witnesses, or sign it before a notary public instead. Notably, South Dakota law does not require your witnesses to meet any special qualifications, and the state runs no central registry for this document or for any other advance directive, so you simply keep the signed original and give copies to your physician, your agent, and any alternate agent.
Key Things to Know
- 1
South Dakota does not give this document its own chapter or proper name; it is defined by a handful of sections layered into the Code's general agency-termination chapter, but what it does is let you (the principal) name a trusted adult (the agent, or attorney-in-fact) to make health care decisions for you if you become unable to make them yourself.
- 2
Your agent's authority begins only when your attending physician determines, in good faith, that you lack decisional capacity (SDCL 59-7-2.6), and it ends automatically the moment your physician determines you have capacity again.
- 3
Unless you limit it in the document, your agent can make any health care decision you could make yourself, including consenting to, refusing, or withdrawing treatment, in accordance with accepted medical standards (SDCL 59-7-2.5).
- 4
South Dakota law does not disqualify any category of person from serving as your agent. Unlike some states, it does not bar your own treating physician or a facility employee from acting as your agent.
- 5
You can sign in front of two adult witnesses, or sign before a notary instead. South Dakota law sets no special qualifications, such as not being related to you or not being your named agent, for those two witnesses.
- 6
You can revoke the document at any time simply by telling your agent, or by any other act that shows your intent to revoke it. South Dakota does not require a written or witnessed revocation.
- 7
If a court later appoints a guardian of your person, this document automatically ends, though the guardian must still follow the medical and end of life wishes you stated in it (SDCL 59-7-11).
- 8
Your agent cannot authorize withholding artificial nutrition or hydration from you except under specific conditions the law lists, and life sustaining treatment must still be given to a pregnant principal unless two physicians certify a narrow medical exception (SDCL 59-7-2.7, 59-7-2.8).
- 9
South Dakota has no central registry for this document and no official statutory form. This is a different document from South Dakota's general durable power of attorney (SDCL Chapter 59-12), which covers property and financial decisions, not health care.
Key decisions before you file
Before you file a Healthcare Power of Attorney in South Dakota, a few decisions shape the document: which option to choose and what each one means. The Healthcare Power of Attorney guide walks through them.
Open the Healthcare Power of Attorney guideCustomize your Healthcare Power of Attorney Template with DocDraft
South Dakota Requirements for Healthcare Power of Attorney
The durable power of attorney for health care must comply with the health care specific provisions within South Dakota Codified Laws Chapter 59-7, namely Sections 59-7-2.1 through 59-7-11.
The document must clearly designate a health care agent, called an attorney-in-fact under South Dakota law, who will make health care decisions on behalf of the principal when the principal lacks decisional capacity (SDCL 59-7-2.1).
South Dakota Codified Laws Section 59-7-2.1 lets a principal designate an attorney-in-fact for health care decisions, but its text addresses a single named agent and does not itself create a successor or alternate agent mechanism the way some states' statutory forms do. Naming a backup agent remains sensible, common drafting practice, and nothing in the statute prohibits it.
The agent may make any health care decision the principal could make individually if the principal had decisional capacity, including consenting to, rejecting, or withdrawing consent for care, service, or treatment. All such decisions must accord with accepted medical standards, and the agent must consider the attending physician's recommendation, the principal's own known wishes, and the principal's best interest (SDCL 59-7-2.5).
The power of attorney is durable by design. Section 59-7-2.1 opens with Notwithstanding Section 59-7-2, meaning the health care designation survives the principal's later incapacity even though ordinary agency would otherwise terminate on incapacity. Section 59-7-9 further provides that, absent a stated termination date in the instrument, the agent's authority is not affected by the passage of time since execution.
The agent may not make a health care decision whenever the principal's attending physician has determined in good faith that the principal has decisional capacity, and the physician proceeds as though no agent were designated if the agent is unavailable or refuses to decide (SDCL 59-7-2.6). South Dakota does not require this determination to be in writing or filed in the principal's medical record, unlike some states.
Federal HIPAA regulations govern how the agent can be authorized to access the principal's protected health information once the document is in effect.
The principal may revoke the power of attorney at any time, the same general rule that terminates any agency under South Dakota law (SDCL 59-7-2(1)). South Dakota does not require the revocation itself to be in writing or witnessed. Separately, if a court later appoints a guardian of the principal's person, the power of attorney automatically terminates at that time, though the guardian must still follow any medical and end of life wishes stated in the document (SDCL 59-7-11).
The principal signs before two other adult individuals, or alternatively signs with the signature acknowledged before a notary public, with no witnesses needed if notarized (SDCL 59-7-2.1). South Dakota law sets no qualification or disqualification criteria for those two witnesses. Unlike many other states, it does not require them to be unrelated to the principal by blood or marriage, does not bar the named agent from witnessing, and does not bar health care providers or facility employees from witnessing.
Notarization is an alternative to witnessing, not an additional requirement layered on top of it. The principal may sign before two adult witnesses, or sign with the signature acknowledged before a notary public instead, with no witnesses needed if the notary option is used (SDCL 59-7-2.1).
The agent may not authorize withholding or withdrawing comfort care from the principal, and may authorize withholding or withdrawing artificial nutrition or hydration only if specific conditions exist, such as the treatment no longer serving comfort care and the physician reasonably believing death is imminent, the principal being unable to physically assimilate the nutrition or hydration, or the principal having clearly expressed that wish (SDCL 59-7-2.7).
An agent authorized to make health care decisions may also make an anatomical gift on the principal's behalf, unless the power of attorney for health care or another record prohibits the agent from doing so (SDCL 34-26-51(2)).
Notwithstanding the designation of a health care agent, life sustaining treatment and artificial nutrition and hydration must be provided to a pregnant principal unless two examining physicians certify, to a reasonable degree of medical certainty, that continuing those measures will not permit the continuing development and live birth of the unborn child, will be physically harmful to the principal, or will prolong severe pain that cannot be alleviated by medication (SDCL 59-7-2.8).
South Dakota law protects a physician or other health care provider who, in good faith, relies on or declines to follow a decision by an attorney in fact or agent believed to be authorized, from criminal prosecution, civil liability, or professional discipline over that reliance, and extends similar protection to a good faith determination of decisional capacity (SDCL 59-7-8). This is immunity for the provider, not a limitation on the agent's own liability.
Facilities that participate in Medicare and Medicaid must inform patients of their rights under state law to make advance directives, including a durable power of attorney for health care.
A principal may nominate a guardian of the principal's person or conservator of the principal's estate within the durable power of attorney for health care itself, for the court's consideration if protective proceedings begin later, and except for good cause shown or disqualification the court must appoint according to the principal's most recent nomination (SDCL 59-7-2.4). South Dakota's general probate code separately confirms courts must honor a validly nominated guardian absent good cause (SDCL 29A-5-304). Conversely, if a court appoints a guardian of the principal's person after the power of attorney for health care already exists, the power of attorney automatically terminates, though the guardian must still follow the document's stated medical and end of life wishes (SDCL 59-7-11).
Frequently Asked Questions
A durable power of attorney for health care in South Dakota is a legal document, created under South Dakota Codified Laws Chapter 59-7, that lets you name a trusted adult (your agent, or attorney-in-fact) to make health care decisions for you if you ever become unable to make them yourself. It covers only health care decisions, such as consenting to or refusing treatment, and your agent may only act at times when your attending physician has determined, in good faith, that you lack decisional capacity.
A durable power of attorney for health care covers only health care decisions. South Dakota's general durable power of attorney, governed by the Uniform Power of Attorney Act (SDCL Chapter 59-12), covers property and financial matters instead, and by its own definitions is tied to inability to manage property, business, or financial affairs, not health care. The two documents also differ in how they become durable. The general power of attorney must contain specific words in the instrument, such as stating it is not affected by the principal's disability, or it will not survive your later incapacity. The health care power of attorney has no such requirement. It automatically survives your later incapacity by the terms of the statute itself. Execution differs too. The general power of attorney requires notarization only, while the health care version lets you choose between two witnesses or a notary.
No. South Dakota law requires only two other adult individuals to witness your signature, or a notary public in place of witnesses. Unlike several other states, South Dakota does not require your witnesses to be unrelated to you by blood or marriage, does not bar your named agent from serving as a witness, and does not bar health care providers or facility employees from witnessing (SDCL 59-7-2.1).
South Dakota law does not disqualify your treating physician, or an employee of your physician or health care facility, from serving as your named agent. This is different from states such as Texas that bar a health care provider from also acting as agent. Even so, naming your own physician as agent is not common practice, since the physician who must determine your decisional capacity would then also be the person deciding on your behalf.
No. South Dakota does not operate a central registry for this document or for any other advance directive. You keep the signed original yourself and give copies to your physician, your agent, and any alternate agent so they have it when it is needed.
You can revoke it at any time simply by telling your agent, or through any other act that shows a clear intent to revoke it. South Dakota law does not require the revocation itself to be in writing or witnessed, though putting it in writing and notifying your agent and physician directly is the safest practice.
If a court appoints a guardian of your person after you have executed a durable power of attorney for health care, the power of attorney terminates at the moment of that appointment. Your guardian must still follow any medical and end of life wishes you delineated in the document itself (SDCL 59-7-11).
Only under specific conditions. Your agent may not authorize withholding comfort care at all, and may authorize withholding or withdrawing artificial nutrition or hydration only if, for example, it is no longer needed for comfort and your death is believed imminent, you cannot physically assimilate it, or you clearly expressed that wish beforehand (SDCL 59-7-2.7). If you are pregnant, life sustaining treatment and artificial nutrition and hydration must still be provided unless two examining physicians certify a narrow medical exception (SDCL 59-7-2.8).