South Carolina Living Will Requirements

South Carolina's living will must be titled as a Declaration of a Desire for a Natural Death, the statutory form set out at Section 44-77-50.

The declaration must identify the declarant by full name, city, county, and state of residence, and affirm the declarant is at least eighteen years of age, as shown in the statutory form itself (Section 44-77-50) and the age threshold set in Section 44-77-30.

South Carolina defines a terminal condition as an incurable or irreversible condition that, within reasonable medical judgment, could cause death within a reasonably short period of time if life-sustaining procedures are not used.

Permanent unconsciousness means a medical diagnosis, consistent with accepted standards of medical practice, that the person is in a persistent vegetative state or another irreversible condition with no neocortical functioning, only involuntary vegetative or primitive reflex functions controlled by the brain stem.

The declaration authorizes withholding or withdrawing life-sustaining procedures once the declarant's condition is certified as terminal or permanently unconscious by two physicians who personally examined the declarant, one of whom is the attending physician and the other of whom is not. A permanent-unconsciousness diagnosis generally requires at least ninety consecutive days of unconsciousness unless cortex destruction or another high-certainty indicator is present sooner.

South Carolina requires two separate initialed elections concerning artificial nutrition and hydration, one tied to a terminal-condition diagnosis and a separate one tied to permanent unconsciousness, per the statutory form at Section 44-77-50. If the declarant does not initial either choice, nutrition and hydration necessary for comfort care are provided by default (Section 44-77-20(2)).

If a declarant has been diagnosed as pregnant, the declaration is not effective at all during the course of the pregnancy. There is no partial requirement; the entire declaration is suspended, unconditionally, for the duration of the pregnancy.

Signing requires both an officer authorized to administer oaths and two witnesses present at the time of signing (the same person may serve as both roles). Witnesses may not be related to the declarant by blood, marriage, or adoption; directly financially responsible for the declarant's medical care; entitled to any part of the declarant's estate; a beneficiary of the declarant's life insurance; the attending physician or an employee of that physician; and no more than one witness may be an employee of the health facility where the declarant is a patient. At least one witness must sign a sworn affidavit. If the declarant is a hospital patient or nursing-care-facility resident at signing, one witness must be an ombudsman designated by the State Ombudsman, Office of the Governor.

A declarant may revoke by destruction, by signed and dated writing, or orally, at any time. None of these methods take legal effect until communicated to the attending physician, who must record the date and time of notification in the declarant's medical record. If the declarant named a designee with power to revoke, that designee may revoke orally or in writing, but only while the declarant is incompetent to revoke it personally.

A physician or health care facility that will not honor a validly executed declaration must make a reasonable effort to locate and transfer the patient to a physician or facility that will.

A person who in good faith relies on a declaration that appears validly executed, and who has no actual notice of revocation, is presumed to act in good faith and is not subject to criminal or civil liability for withholding or withdrawing life-sustaining procedures in accordance with it.

Federal HIPAA regulations govern how a health care agent or designee can be authorized to access a declarant's protected health information. In South Carolina, the declaration itself only lets you name someone limited to revoking or enforcing it; broader medical-record access for a general decision-maker is tied to a separate Health Care Power of Attorney, not to this declaration.

Federal law requires Medicare- and Medicaid-participating hospitals, nursing homes, and other facilities to inform patients in writing of their right under South Carolina law to make an advance directive, including stating their own treatment wishes.

Participating Medicare and Medicaid providers must maintain written policies and procedures respecting advance directives, consistent with the Patient Self-Determination Act.

South Carolina's Revised Uniform Anatomical Gift Act, beginning at Section 44-43-310 within Title 44, Chapter 43, Article 5, lets a declarant authorize organ and tissue donation separately from the declaration's life-sustaining-treatment provisions.

South Carolina recognizes a declaration validly executed under the law of another state if that declaration expresses an intent substantially the same as South Carolina's own declaration.

South Carolina's Health Care Power of Attorney is a wholly separate statute (the South Carolina Statutory Health Care Power of Attorney Act, Title 62, Article 5, Part 5) from the living-will declaration, with its own execution rule requiring only two witnesses and no oath-administering officer. The declaration itself may only name someone to revoke or enforce it, never a general medical decision-maker; that broader role requires executing a separate Health Care Power of Attorney. See South Carolina Healthcare Power of Attorney.

A declarant who directs that life-sustaining procedures be withheld or withdrawn may still direct that medication or other treatment for comfort care and pain alleviation continue; the statutory definition of 'life-sustaining procedures' expressly excludes comfort-care medication and treatment from its scope.

Even after two physicians certify a declarant's condition as terminal or permanently unconsciousness, South Carolina requires that the patient be given active treatment (the standard of reasonable professional care a physician would otherwise render, including hospitalization and medication) for a minimum of six hours following the diagnosis before the physician may act on the declaration.