Living Will and Advance Health-Care Instruction Requirements in South Dakota

At a glance

South Dakota uses a standalone written declaration under SDCL chapter 34-12D. The declaration governs withholding or withdrawal of life-sustaining treatment and separately must address artificial nutrition and hydration. It is not an appointment of a health-care agent.

Requirements one by one

The declaration needs a signature and either witnesses or a notary

Under § 34-12D-2, a competent adult signs personally or directs another person to sign. The declaration then uses one of two alternatives: two adult witnesses, or a notary public who notarizes it. Chapter 34-12D lists no relationship, inheritance, provider, or facility disqualification for a witness.

The printed § 34-12D-3 form is optional. It still displays signature lines for the declarant, two witnesses, and a notary, but the current operative rule in § 34-12D-2 makes witnesses and notarization alternatives. The form has a date line; the execution sentence itself does not state a date requirement. The chapter defines a declaration as a writing and supplies no oral or electronic-specific creation route.

The attending physician makes the activating findings

Under § 34-12D-5, the declaration becomes operative when the attending physician determines all three points: the declarant has a terminal condition, death is imminent, and the declarant can no longer communicate decisions about medical care.

The definition in § 34-12D-1(7) includes both an imminently fatal, incurable and irreversible condition and a detailed indefinite-coma or permanent-unconsciousness category. But § 34-12D-5 separately says death must be imminent. The statutory form's permanent-unconsciousness wording should therefore not be read as a free-standing trigger detached from the operative section.

Feeding, hydration, and comfort are separate questions

Every declaration must state the declarant's preferences about providing, withholding, or withdrawing artificial nutrition and hydration. If it does not, § 34-12D-2 says the ordinary South Dakota law that applies without a declaration governs that question.

The optional form separately offers prolong-life, do-not-prolong, and custom treatment instructions, followed by a distinct feeding-and-hydration choice. Under § 34-12D-1(4) and § 34-12D-9, life-sustaining treatment excludes oral food and water, comfort, hygiene, human dignity, and medication or procedures needed to alleviate pain; provider responsibility for those needs continues.

What trips people up

• Pregnancy has a two-physician exception test. Life-sustaining treatment and artificial nutrition and hydration must be provided despite the declaration unless the attending physician and one other physician who has examined the woman certify on the medical chart, to a reasonable degree of medical certainty, that the procedures will not permit continuing development and live birth, will physically harm the woman, or will prolong severe pain that medication cannot alleviate (§ 34-12D-10).
• A capable patient still decides. § 34-12D-6 preserves a qualified patient's own decisions about life-sustaining treatment while the patient can make them.
• Revocation is deliberately broad. The declarant may revoke at any time and in any manner without regard to mental or physical condition. It becomes effective when communicated to a health-care provider, who must place it in the medical record (§ 34-12D-8).
• Related documents and medical standards still matter. If a declaration conflicts with a durable power of attorney, the later document controls under § 34-12D-4. The chapter does not require care contrary to accepted medical standards (§ 34-12D-19) and does not authorize mercy killing, euthanasia, suicide, or assisted suicide (§ 34-12D-20).

Common questions

May I use a notary instead of two witnesses? Yes. The current § 34-12D-2 sentence makes the two-adult-witness route and the notary route alternatives, even though the older optional form displays both blocks.

What if a provider will not withhold or withdraw treatment? Under § 34-12D-11, the provider need not participate but must make a reasonable effort to locate and transfer the declarant to a willing physician or provider. A direction to provide technically feasible treatment or artificial nutrition and hydration follows the different § 34-12D-12 rule: an objecting provider may transfer, but must continue the directed care until the transfer occurs.

Does South Dakota recognize a declaration signed elsewhere? Under § 34-12D-22, a declaration is valid for purposes of the chapter if it met the execution law of the jurisdiction where the declarant then lived, the place of execution, or South Dakota.

Is there a state living-will registry? Chapter 34-12D establishes no directive registry. Its notice system instead depends on communication to providers and medical-record entries under § 34-12D-7 and § 34-12D-8.

Statutes and sources

• S.D. Codified Laws § 26-1-1 — age of minority. South Dakota Legislative Research Council (accessed 2026-07-31).
• S.D. Codified Laws §§ 34-12D-1 to -3 — definitions, execution, mandatory artificial-nutrition-and-hydration preference, and optional form. Same official source (accessed 2026-07-31).
• S.D. Codified Laws §§ 34-12D-5 to -12 — operative trigger, current patient choice, medical records, revocation, comfort, pregnancy, and provider transfer duties. Same official source (accessed 2026-07-31).
• S.D. Codified Laws §§ 34-12D-13 and -19 to -22 — immunity, accepted medical standards, statutory limits, presumed validity, and out-of-state execution. Same official source (accessed 2026-07-31).