Living Wills

Important Definitions: SDCL §34-12D-1

“Terminal condition,” an incurable and irreversible condition that, in accordance with accepted medical standards, will cause death within a relatively short time if life-sustaining treatment is not administered, or a coma or other condition of permanent unconsciousness that, in accordance with accepted medical standards, will last indefinitely without significant improvement and in which the individual is unable to communicate verbally or nonverbally, demonstrates no purposeful movement or motor ability, and is unable to interact purposefully with environmental stimulation.

“Life-sustaining treatment,” any medical procedure or intervention that, when administered to a qualified patient, will serve only to postpone the moment of death or to maintain the patient in a condition of permanent unconsciousness.  The term does not include the provision of appropriate care to maintain comfort, hygiene and human dignity, the oral administration of food and water, or the administration of any medication or other medical procedure deemed necessary to alleviate pain. 

What is a Living Will Declaration? §34-12D-2, §34-12D-3

A Living Will declaration, as provided by South Dakota State Statute 34-12D is a legally binding declaration of ones medical intentions, regarding life sustaining treatment, on the condition that the individual is unable to participate in medical decisions and is in a terminal condition. The Living Will Declaration can control whether you live or die and the creation of one, or your intentions to create, should be seriously considered.  According to South Dakota State Statute, the Living Will Declaration can only be created by a competent adult, must be signed and witnessed by two adult individuals, and, should you choose, signed in the presence of a notary. This document will remain valid and in effect until such time as you revoke it. 

What does a Living Will Declaration look like? §34-12D-3

While there is no single model that need be used, the state of South Dakota does provide a sample for your consideration:

http://legis.state.sd.us/statutes/Index.cfm?FuseAction=DisplayStatute&FindType=Statute&txtStatute=34-12D-3

What happens if I don’t specify my intentions to have artificial nutrition or hydration withheld?

According to South Dakota State Statute 34-12D-2, the state, with the use of applicable state laws governing such scenarios in the absence of a declaration, would reserve the right to determine whether artificial nutrition or hydration would be provided, withheld, or withdrawn.

When does the Living Will Declaration become operative?

Keep in mind the difference between effective and operative.  The Living Will becomes effective as soon as you, and your two witnesses, sign the declaration, but the Living Will Declaration does not become operative until the attending physician and one other physician to be in a terminal condition and unable to make decisions regarding the administration of life sustaining treatment.  Once the declaration is operative, the attending physician and other health-care providers shall act in accordance to the declaration or comply with transfer requirements.

What if my physician does not want to respect my Living Will?

The state of South Dakota does not force a physician to go along with the Living Will Declaration, but he/she is required to make a reasonable effort to locate or, in the case of your being in a terminal condition, transfer you and the declaration to a physician or health-care provider (nurses, etc.) willing to honor your wishes.  Keep in mind that if you are in a terminal condition and your physician does not want to comply with the living will, life-sustaining measures will be continued until you are delivered into the care of a complying physician.

Will my physician be punished for following my wishes as determined by my Living Will Declaration?

Absolutely not, as a matter of fact section 13 of South Dakota Statute 34-12D provides immunity to the physician from civil liability, criminal liability, and professional discipline.  Furthermore, according to section 14 of the statute, the physician’s compliance with the Living Will Declaration does not constitute homicide, this also applies to other healthcare providers.

Could my Living Will Declaration cause me to lose my life insurance or annuity? 

Sections 15 and 16 of SS 34-12D explains that no life insurance policy is invalidated or legally impaired by the withdrawal or withholding of life-sustaining treatment as provided by the Living Will Declaration.  Explicitly, the section 16 states, “Insurer or healthcare provider may not prohibit or require declaration.”  This simply means that an insurance policy cannot require you to have a Living Will Declaration or deny you from having one. 

Can I receive medical treatment without a Living Will Declaration?

Yes.  The state prohibits individuals from withholding healthcare services if an individual lacks a Living Will Declaration. 

Who should know about my Living Will Declaration?

Nurses, physicians, relatives and loved ones.  Essentially you can tell anyone about your wishes and that such a document exists.  To make sure there is little to no deviation from your wishes you may want to make sure your primary physician has a copy, your family should have a copy, and perhaps your family attorney.  The more people that are aware your Living Will Declaration, the better. 

When can I revoke a Living Will Declaration?

According to §§ 34-12D-8, you may revoke the Living Will Declaration at any time and in any manner you choose, however revocation is only effective upon communication of your revocation.  This being said, you will want to contact your attending physician, family and anyone with which your health issues are, or may be, of concern.  

Will my Living Will Declaration be effective if I travel out of South Dakota?

It depends.  While this is not a very good answer, state laws really differ on the application and execution of the Living Will Declaration.  In a letter from the South Dakota Office of the Attorney General, Mr. Mark Barnett tries to answer the question as to whether a living will, drafted in another state, is controlled by the laws of this state or the laws of the state of origin.  After much legal consideration Mr. Barnett concludes that foreign (out of state) living wills are applicable to the laws of this state, and should be interpreted, applied and enforced according to SDCL 34-12D.  Does this mean that every state will require a radically different form of the living will declaration?  Not necessarily, but you may want to seek out legal consultation in regards to the statutes in the state you may be traveling to.