Health Care Power of Attorney Requirements in South Dakota

At a glance

South Dakota keeps its durable power of attorney for health care in its own short chapter, SDCL ch. 59-7 (§§ 59-7-2.1 to 59-7-2.8). It is separate from the state's optional living-will form (§ 34-12D-3) and from the financial power-of-attorney Uniform Act (ch. 59-12). This page is about the part that names an agent (the statute calls the person your "attorney-in-fact or agent") to make medical decisions for you when you cannot.

Execution requires a signature plus two adult witnesses or one notary. The two witnesses may participate remotely by real-time video. The agent's power is firmly springing — it cannot be used while the principal has decisional capacity — and it ends if a court later appoints a guardian of the person.

Requirements one by one

Governing law and document

The chapter has no fill-in health-care-POA form. You create the power by signing a writing that names your agent and uses the durability language that § 59-12-3 calls for — § 59-7-2.1 expressly ties the health-care power to that provision. Do not use the financial form in § 59-12-41 for this purpose: it says, "This power of attorney does not authorize the agent to make health-care decisions for you."

Who can sign

The document must be "signed by the principal or in the principal's conscious presence by another individual directed by the principal to sign the principal's name" (§ 59-7-2.1) — the route for someone who cannot physically sign. These execution provisions do not state a minimum age, require a date, or define a separate capacity test for signing.

Witnesses or notary

You have a choice (§ 59-7-2.1): the signature must be witnessed by two other adult individuals or by a notary public. Two adult witnesses satisfy the statute, and so does a single notary; you do not need both.

The two-witness route may be remote. Sections 18-8-1 and 18-8-4 treat the power as validly signed when two adult witnesses are in the principal's "electronic presence," meaning real-time video communication with simultaneous sight and sound.

Who can't witness or serve

Section 59-7-2.1 lets you designate "any other person" as agent and says only that the two witnesses must be adults. It states no provider, facility, relative, heir, or named-agent disqualification. That is the statutory floor; the section does not create a special approval of any particular professional or relationship choice.

When the agent can act

The authority is springing and cannot be made immediate. Your agent "shall have the authority to make any health care decision at any time during which the principal lacks capacity" (§ 59-7-2.1), and may not act while the attending physician finds the principal has decisional capacity (§ 59-7-2.6).

Under § 34-12C-2, incapacity may be determined by a circuit court or in good faith by the attending physician acting alone or with another physician. A physician's determination must be written, signed, and placed in the medical record. If a court appoints a guardian of the principal's person, however, the power terminates under § 59-7-11.

Agent's powers and limits

Your agent may make "any health care decisions for the principal which the principal could make individually," always "in accordance with accepted medical standards," and must weigh the attending physician's recommendation, what you would have chosen (if known), and your best interest (§ 59-7-2.5).

Two firm limits apply:

• Comfort care is off-limits. Your agent "may not authorize the withholding or withdrawal of comfort care" (§ 59-7-2.7).
• Tube feeding is conditional. Your agent may authorize withholding or withdrawing artificial nutrition or hydration only if one of the conditions in § 59-7-2.7 is met — for example, it cannot be physically assimilated, its burden outweighs its benefit, or you said in the document that it be withheld.
• Pregnancy overrides the document. For a pregnant principal, life-sustaining treatment and artificial nutrition and hydration must continue unless two physicians certify that they will not permit the pregnancy to reach live birth, or will harm the woman or prolong pain that cannot be relieved (§ 59-7-2.8).

How to revoke

Chapter 59-7 does not lay out a signed-writing, oral-notice, destruction, or later-document method specific to the health-care power. The general rule, § 59-7-2, lists "revocation by the principal" as a terminating event as to a person who has notice. Section 59-6-11 correspondingly lets another person rely on the power's presumed validity unless that person has actual knowledge it was revoked.

A separate termination rule matters here: if a court appoints a guardian of the principal's person, the power ends at the appointment. The guardian must still follow the power's provisions describing the principal's medical and end-of-life wishes (§ 59-7-11).

Out-of-state directives

The health-care-power provisions contain no general rule validating a directive because it was valid where signed. The financial UPOAA's portability rule cannot be imported: § 59-12-2 expressly excludes "[a] power to make health care decisions" from that chapter. Section 34-12H-6 does recognize an out-of-state medical order for scope of treatment (MOST), but a MOST is a clinician's medical order, not the principal-executed agent appointment covered here.

What trips people up

• Your agent cannot act while you still can. Signing does not put your agent in charge. Until your attending physician finds in good faith that you lack decisional capacity, you make your own decisions and your agent cannot override you (§§ 59-7-2.1, 59-7-2.6).
• The witness rule is an either/or. Two adult witnesses or one notary — not both (§ 59-7-2.1). Many people notarize out of caution, which is fine, but it is not required if you have two witnesses.
• Remote witnessing is available on the two-witness path. Sections 18-8-1 and 18-8-4 validate two adult witnesses communicating with the principal by real-time video with simultaneous sight and sound.
• A later guardian appointment ends the agent's authority. The guardian must follow the medical and end-of-life wishes written in the power (§ 59-7-11).
• Tube feeding and pregnancy have special rules. Your agent cannot stop comfort care, can stop artificial nutrition and hydration only under listed conditions (§ 59-7-2.7), and cannot cut off life support for a pregnant principal absent a two-physician certification (§ 59-7-2.8).

Common questions

Does a South Dakota health care power of attorney have to be notarized? No. You can use two adult witnesses instead of a notary; either one satisfies § 59-7-2.1.

Does § 59-7-2.1 disqualify my spouse, doctor, or an heir? No. That section identifies no relationship, provider, facility, or heir bar; it requires only that the two witnesses be adults.

Can I make my agent's authority effective immediately, even while I'm well? No. The agent may act only "during which the principal lacks capacity," and may not act while your attending physician finds you have decisional capacity (§§ 59-7-2.1, 59-7-2.6).

Can my agent decide to stop tube feeding? Only under the specific conditions in § 59-7-2.7 (and never for basic comfort care). For a pregnant principal, § 59-7-2.8 requires continued treatment unless two physicians certify otherwise.

Statutes and sources

• SDCL 59-7-2 — how a power of attorney terminates: revocation by the principal, death, or incapacity to contract. https://sdlegislature.gov/api/Statutes/59-7-2.html (accessed 2026-08-20)
• SDCL 59-7-2.1 — execution of the durable power of attorney for health care: signature, two-witness-or-notary choice, "any other person" as agent, and the agent's authority during the principal's incapacity. https://sdlegislature.gov/api/Statutes/59-7-2.1.html (accessed 2026-08-20)
• SDCL 59-7-2.5 — the agent's decision-making standard. https://sdlegislature.gov/api/Statutes/59-7-2.5.html (accessed 2026-08-20)
• SDCL 59-7-2.6 — the agent may not act while the attending physician finds the principal has decisional capacity. https://sdlegislature.gov/api/Statutes/59-7-2.6.html (accessed 2026-08-20)
• SDCL 59-7-2.7 — comfort care may not be withheld; conditions for withdrawing artificial nutrition or hydration. https://sdlegislature.gov/api/Statutes/59-7-2.7.html (accessed 2026-08-20)
• SDCL 59-7-2.8 — artificial nutrition and hydration for a pregnant principal; two-physician certification. https://sdlegislature.gov/api/Statutes/59-7-2.8.html (accessed 2026-08-20)
• SDCL 59-12-3 — written durability or springing language referenced by the health-care-power section. https://sdlegislature.gov/api/Statutes/59-12-3.html (accessed 2026-08-20)
• SDCL 18-8-1 and 18-8-4 — electronic presence means real-time video with sight and sound; two adult witnesses may witness the health-care power that way. https://sdlegislature.gov/api/Statutes/18-8.html?all=true (accessed 2026-08-20)
• SDCL 34-12C-2 — incapacity determinations and the written medical-record requirement. https://sdlegislature.gov/api/Statutes/34-12C-2.html (accessed 2026-08-20)
• SDCL 59-6-11 — presumed validity and reliance until actual knowledge of invalid execution or revocation. https://sdlegislature.gov/api/Statutes/59-6-11.html (accessed 2026-08-20)
• SDCL 59-7-11 — guardian appointment terminates the power but preserves the principal's written medical and end-of-life wishes. https://sdlegislature.gov/api/Statutes/59-7-11.html (accessed 2026-08-20)
• SDCL 59-12-2 and 59-12-41 — the financial UPOAA excludes health-care powers, and its statutory form does not authorize health-care decisions. https://sdlegislature.gov/api/Statutes/59-12.html?all=true (accessed 2026-08-20)
• SDCL 34-12D-3 — South Dakota's separate optional living-will form. https://sdlegislature.gov/api/Statutes/34-12D-3.html (accessed 2026-08-20)
• SDCL 34-12H-6 — limited recognition of an out-of-state MOST medical order, not a general health-care-POA reciprocity rule. https://sdlegislature.gov/api/Statutes/34-12H-6.html (accessed 2026-08-20)