Medical power of attorney in South Dakota: how to sign one
The short answer
In South Dakota, a durable power of attorney for health care names someone to make medical decisions when you can't. You sign it before two adult witnesses or a notary. If you name nobody, the law turns to your spouse, adult children, parents, siblings and other relatives, and finally a close friend.
The question under every medical power of attorney is a simple one. If you can't speak for yourself, who talks to the doctor?
South Dakota calls the document a "durable power of attorney for health care." This page covers how to sign one, how a living will fits in, and what happens if you name nobody. It is part of our estate planning guides by state. For the basics of the role, see what a medical power of attorney is.
How do I sign one in South Dakota?
South Dakota keeps this simple. You sign the document, or someone signs for you in your conscious presence and at your direction (SDCL 59-7-2.1).
Then your signature needs one of these:
- Two adult witnesses, or
- A notary public.
The statute doesn't list people who are barred from witnessing. Even so, it is sensible to pick witnesses who aren't your agent and aren't in your will, so the document is harder to question later. A notary is the simplest path.
South Dakota has no statutory form for this document. Any writing that meets the signing rule works. That is different from South Dakota's financial power of attorney, which needs a notary and has a statutory form worth using. Our South Dakota power of attorney guide covers that one.
What can my agent decide?
Your agent can make any health care decision you could make yourself, during any time you lack capacity (SDCL 59-7-2.1). Your agent must weigh your physician's recommendation, your known wishes and your best interest.
Your agent is a fiduciary: legally required to act in your interest and follow what you wrote. Day to day, that means talking with your doctors, reading your chart, and agreeing to or declining a test or a new medicine the way you would.
A few South Dakota details are worth knowing:
- Comfort care stays. Your agent can't authorize withholding comfort care (SDCL 59-7-2.7).
- Tube feeding needs care. Your agent can withhold artificial nutrition or hydration only in the situations the statute lists, for example when your document expressly allows it. If this matters to you, say so in writing.
- A guardian changes things. Your document can nominate a guardian. If a court later appoints a guardian of the person, the health care power of attorney ends, but the guardian must follow the end-of-life wishes it states (SDCL 59-7).
Do I need a living will too?
Many people sign both. A health care power of attorney names a person. A living will writes down your wishes about life-sustaining treatment, so that person isn't guessing.
South Dakota calls it a "living will declaration." It is signed the same way: two adult witnesses, or a notary (SDCL 34-12D-2). There is an optional statutory form with lines for both, but either one by itself is enough (SDCL 34-12D-3).
One rule changed in 2023. Your living will must state your wishes about artificial nutrition and hydration (feeding tubes and IV fluids). If it doesn't, that question falls back to the law that applies when there is no declaration. An older living will may be silent on this, so it is worth a look.
Our post on health care power of attorney vs living will explains how the two work together, and treatment preferences helps you think through what to write.
Who decides if I haven't named anyone?
South Dakota law picks for you. If there is no health care agent or guardian, or neither is available, decisions go to the first available person on this list (SDCL 34-12C-3):
| Order | Who decides |
|---|---|
| 1 | Your spouse, if not legally separated |
| 2 | An adult child |
| 3 | A parent |
| 4 | An adult brother or sister |
| 5 | A grandparent or an adult grandchild |
| 6 | An adult aunt, uncle, cousin, niece or nephew |
| 7 | A close friend |
A "close friend" is an adult who has given you significant care, shown concern, and kept in regular contact, so they know your activities, health, and religious or moral beliefs (SDCL 34-12C-1). That describes many good neighbors.
Two choices are open to you even without a health care power of attorney. You can disqualify any family member in a signed document, or by a note in your medical record made at your direction. And a family member can hand the decision to another relative in the same or a later group, by signed delegation.
Whoever decides must follow your known wishes, otherwise act in good faith in your best interest. They must consider your doctor's advice and can't refuse consent arbitrarily. Incapacity is decided by your attending physician in writing, by a court, or through a guardianship.
Notice where a friend sits: seventh, behind cousins, nieces and nephews. If the person who really knows your wishes is a friend, naming them in a health care power of attorney moves them to the front. Our who decides for me tool can walk through your own situation, and the 50-state guide to default decision-makers compares other states. Our post on medical decisions without a power of attorney explains the general picture.
Here is a typical case, a composite. Betty is 73, divorced, and lives in Sioux Falls. Her nephew lives in Texas and they talk at Christmas. Her friend Marilyn sits with her at every appointment and knows what she would want. Betty names Marilyn as her health care agent and her nephew as backup.
How do I choose my agent?
Once the signing is done, the practical questions matter most. Is the person willing? Can they get to the hospital? Will they follow your wishes even when they'd choose differently?
A short checklist:
- They know what you want, because you've told them.
- They can stay calm in a hospital hallway and ask questions.
- They live close enough, or can travel when needed.
- You've named a backup in case they can't.
Our post on how to choose a medical power of attorney has more questions to ask.
Some people would like a professional standing by, first or behind a friend. A Kinly membership includes a medical power of attorney written for your state, and Trella Trust Company can be named in the role, first or as the backup to someone you choose.
Once your health papers are done, our South Dakota probate guide covers what happens to your home and savings later.
Common questions
Does a medical power of attorney need to be notarized in South Dakota?
Not necessarily. It needs either two adult witnesses or a notary public. Either one is enough.
Who makes medical decisions in South Dakota if there's no power of attorney?
Your spouse, then an adult child, a parent, a sibling, a grandparent or adult grandchild, an aunt, uncle, cousin, niece or nephew, and finally a close friend. The first available person in that order decides.
Can I keep a relative from making my medical decisions?
Yes. You can disqualify any family member in a signed document, or by a note in your medical record made at your direction. Naming a health care agent is the clearest way.
Does my South Dakota living will need to mention feeding tubes?
Yes, since 2023. A living will declaration must state your wishes about artificial nutrition and hydration. If it doesn't, the law that applies without a declaration governs that question.
Is there an official South Dakota form?
There is an optional statutory form for the living will declaration. There is no statutory form for the durable power of attorney for health care; any document that meets the signing rule works.
Sources
- SDCL 59-7-2.1: Durable power of attorney for health care (South Dakota Legislature)
- SDCL chapter 59-7, including 59-7-2.7 (South Dakota Legislature)
- SDCL 34-12D-2: Living will declaration; execution (South Dakota Legislature)
- SDCL chapter 34-12D, including the form in 34-12D-3 (South Dakota Legislature)
- SDCL 34-12C-3: Order of persons who may make health care decisions (South Dakota Legislature)
- SDCL 34-12C-1: Definitions, including close friend (South Dakota Legislature)
This page is general information, not legal or financial advice. Laws vary by state.