South Dakota Living Will Requirements

Introduction

Key Things to Know

1. 1

   South Dakota keeps the living will and the health care power of attorney as two entirely separate legal documents under two different titles of state law. This page is about the living will alone, your own written treatment instructions; it does not name anyone to decide on your behalf.

2. 2

   A living will is not a last will and testament. The living will speaks while you are alive but unable to communicate about medical care; a last will and testament only takes effect after you die and deals with property, not treatment.

3. 3

   South Dakota requires your declaration to state your preference on artificial nutrition and hydration as its own separate choice. If you skip it, the outcome is not automatically 'provide' or 'withhold'; it falls back to the state's default rules for someone with no declaration on the point.

4. 4

   You can execute your declaration with two adult witnesses, or before a notary public instead; both routes work on their own. As of a 2023 update to the statute, notarization is a genuine alternative to witnesses, not just an extra step.

5. 5

   South Dakota sets no qualification on who can witness your signature beyond being an adult. It does not bar relatives, potential heirs, your physician, or facility staff from witnessing, which is more permissive than many states.

6. 6

   If you are pregnant, life-sustaining treatment and artificial nutrition and hydration must still be provided to you unless two examining physicians certify on your chart that continuing would not allow a live birth, would physically harm you, or would prolong pain medication cannot relieve.

7. 7

   You may revoke your declaration at any time and in any way that communicates your intent, no matter your mental or physical condition. It takes effect once a health care provider learns of it.

8. 8

   Your declaration is not automatically overridden the moment you name an agent. If you sign both this declaration and a health care power of attorney and their terms ever conflict, South Dakota law (SDCL 34-12D-4) says whichever one you signed most recently controls, and signing a power of attorney does not by itself cancel your declaration.

9. 9

   South Dakota has no dedicated state registry for living wills. Keep your signed original somewhere your family and physician can reach, and give copies to your health care providers directly.

South Dakota Requirements for Living Will

• Statutory Authority (SDCL 34-12D-1 et seq.)

  South Dakota's living will is governed entirely by its own chapter, SDCL 34-12D (Living Wills). The health care power of attorney is a genuinely separate document under a different title of state law, SDCL 59-7-2.1 through 59-7-2.8. These are two distinct statutes, not one combined authority, so a South Dakota resident who wants both a living will and an agent designation must execute two separate documents.

• Definition of Terminal Condition (SDCL 34-12D-1(7))

  SDCL 34-12D-1(7) defines 'terminal condition' as either an incurable and irreversible condition where death is imminent without life-sustaining treatment, or a coma or other condition of permanent unconsciousness meeting specific medical criteria (no purposeful movement, no ability to communicate or interact with surroundings, expected to last indefinitely). Both branches count; the definition is not limited to imminent-death cases alone.

• Definition of Life-Sustaining Treatment (SDCL 34-12D-1(4))

  SDCL 34-12D-1(4) defines 'life-sustaining treatment' as any medical procedure or intervention that would only postpone death or maintain permanent unconsciousness. The term specifically excludes care given for comfort, hygiene, and human dignity, oral food and water, and medication or procedures needed to relieve pain, so those are never withheld under a declaration.

• When the Declaration Becomes Operative (SDCL 34-12D-5)

  A South Dakota living will only becomes operative once the attending physician determines the declarant is in a terminal condition and can no longer communicate decisions about medical care. Both conditions must be met together.

• Execution Requirements (SDCL 34-12D-2)

  A competent adult signs the declaration, or directs another adult to sign for them, and it is valid if witnessed by two adults or acknowledged before a notary public who then notarizes it, an either-or choice as of a 2023 amendment to this section. SDCL 34-12D-2 sets no restriction on who may serve as a witness beyond being an adult; it does not exclude relatives, people who would inherit from the declarant, or anyone connected to the declarant's medical care.

• Revocation Procedures (SDCL 34-12D-8)

  A declarant may revoke the declaration at any time and in any manner that communicates an intent to revoke, regardless of mental or physical condition. The revocation is effective once it is communicated to a health care provider, who must add it to the declarant's medical record. The statute does not require a specific method such as physically destroying the document or a signed writing; any manner of communicating intent is enough.

• Pregnancy Limitations (SDCL 34-12D-10)

  If the declarant is pregnant, both life-sustaining treatment and artificial nutrition and hydration must still be provided unless the attending physician and one other physician who has examined her both certify, on her medical chart, to a reasonable degree of medical certainty, that continuing would not permit the pregnancy's continuing development and live birth, would be physically harmful to her, or would prolong severe pain that medication cannot relieve.

• Immunity for Healthcare Providers (SDCL 34-12D-13)

  A health care provider acting in good faith in accordance with a declaration, without actual knowledge of its revocation, or in determining whether a terminal condition exists, or in declining to give effect to a declaration, is not subject to civil or criminal liability or professional discipline for that decision.

• No Suicide or Homicide Implication (SDCL 34-12D-14)

  Death resulting from withdrawing or withholding life-sustaining treatment in accordance with a valid declaration is not, for any purpose, considered a suicide by the declarant or a homicide by the attending physician or other health care providers involved.

• Insurance Policy Protection (SDCL 34-12D-15)

  Executing a living will does not affect the sale, procurement, or issuance of a life insurance or annuity policy, and does not impair, modify, or invalidate the terms of an existing policy, even where life-sustaining treatment is withdrawn or withheld under the declaration.

• Prohibition Against Requiring a Living Will (SDCL 34-12D-16)

  No person may require or prohibit the execution of a living will as a condition of being insured for, or receiving, health care services.

• Multiple Documents and Conflict Resolution (SDCL 34-12D-4)

  Because South Dakota treats the living will and the health care power of attorney as two separate documents, the statute directly addresses what happens when someone signs both: whichever one was executed later controls to the extent its terms conflict with the earlier one. Signing both does not create a presumption against letting a named health care agent help carry out the living will's instructions.

• Patient Self-Determination Act Compliance (42 U.S.C. Section 1395cc(f))

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

• HIPAA Authorization (45 CFR Section 164.508)

  Federal HIPAA regulations govern how a health care agent named in South Dakota's separate durable power of attorney for health care can be authorized to access protected health information.

• Artificial Nutrition and Hydration Election (SDCL 34-12D-2)

  South Dakota requires the declaration to separately state the declarant's preference on artificial nutrition and hydration, distinct from the general life-sustaining-treatment choice. The optional statutory form at 34-12D-3 gives this its own initialed line. If the declarant leaves it blank, the outcome is not an automatic default to providing or withholding it; it is instead governed by whatever South Dakota law otherwise applies when no declaration addresses the point.

• Comfort Care and Pain Relief (SDCL 34-12D-9)

  Nothing in South Dakota's living will chapter affects a health care provider's responsibility to treat pain or provide for the declarant's comfort, hygiene, and human dignity, even after life-sustaining treatment is withdrawn or withheld under the declaration.

• Organ Donation Coordination (SDCL 34-26-48 et seq.)

  South Dakota's Revised Uniform Anatomical Gift Act, beginning at SDCL 34-26-48, lets a person authorize organ and tissue donation. Section 34-26-68 specifically addresses how an anatomical gift interacts with an advance health care directive, so donation wishes can be coordinated alongside a living will.

• EMS Cardiopulmonary Resuscitation Directive Coordination (SDCL 34-12F-1 et seq.)

  SDCL Chapter 34-12F creates a specific EMS cardiopulmonary resuscitation directive, sometimes called Comfort One, that tells emergency responders not to attempt resuscitation. It is narrower than a general portable medical order and is a separate document from the living will, though the two can be used together.

• Provider May Decline to Participate (SDCL 34-12D-11)

  A health care provider may decline, for any reason, to participate in withdrawing or withholding life-sustaining treatment under a declaration. A provider who declines must make a reasonable effort to locate and transfer the declarant to a physician or provider willing to honor the declaration.

• Recognition of Declarations from Other Jurisdictions (SDCL 34-12D-22)

  A declaration is valid in South Dakota if it satisfies the execution requirements of the jurisdiction where the declarant lived, the jurisdiction where it was signed, or South Dakota's own chapter.