HEALTHCARE POWER OF ATTORNEY
(South Dakota – Comprehensive Form)
[// GUIDANCE: This template is drafted to comply with SDCL ch. 34-12C (South Dakota Uniform Health-Care Decisions Act) and the federal HIPAA Privacy Rule, 45 C.F.R. pts. 160 & 164. Customize all bracketed items, delete any inapplicable options, and review with local counsel before execution.]
TABLE OF CONTENTS
- Document Header
- Definitions
- Appointment & Grant of Authority
- Agent’s Duties & Standard of Care
- End-of-Life & Special Instructions
- HIPAA Authorization
- Reliance, Indemnification & Liability Limitation
- Revocation, Termination & Successor Agents
- Governing Law; Forum Selection; Injunctive Relief
- General Provisions
- Execution Blocks (Principal, Agent, Witnesses/Notary)
1. DOCUMENT HEADER
1.1 Title. Healthcare Power of Attorney and Advance Health-Care Directive (the “Agreement”).
1.2 Parties.
a. “Principal”: [PRINCIPAL FULL LEGAL NAME], residing at [ADDRESS].
b. “Agent”: [PRIMARY AGENT FULL LEGAL NAME], residing at [ADDRESS].
c. “Alternate Agent(s)” (if any): [ALTERNATE AGENT #1], then [ALTERNATE AGENT #2].
1.3 Effective Date. This Agreement is effective on the date it is executed pursuant to Section 11.
1.4 Jurisdiction. This Agreement is made under, and shall be governed by, the health-care decision laws of the State of South Dakota and any applicable federal law.
1.5 Recitals.
WHEREAS, the Principal desires to authorize the Agent to make health-care decisions on the Principal’s behalf should the Principal be unable to do so; and
WHEREAS, South Dakota law permits such authorization pursuant to SDCL § 34-12C-1 et seq.;
NOW, THEREFORE, the parties agree as follows.
2. DEFINITIONS
For purposes of this Agreement, capitalized terms have the meanings set forth below:
“Act” means the South Dakota Uniform Health-Care Decisions Act, SDCL ch. 34-12C.
“Advance Directive” means a written instruction, recognized under the Act, relating to the provision of health care when the Principal is incapacitated.
“Agent” means the individual designated in Section 1.2(b) to make health-care decisions for the Principal.
“Good Faith” means honesty in fact in the conduct of the transaction concerned and the observance of reasonable health-care standards under the circumstances.
“Health-Care Decision” has the meaning given in SDCL § 34-12C-1(8).
“Health-Care Provider” means any person or facility licensed or authorized to provide health-care services.
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations, 45 C.F.R. pts. 160 & 164.
“Incapacity” means the inability to understand and appreciate the nature and consequences of health-care decisions, as determined pursuant to SDCL § 34-12C-3.
“Principal” has the meaning set forth in Section 1.2(a).
3. APPOINTMENT & GRANT OF AUTHORITY
3.1 Appointment. The Principal hereby appoints the Agent to make any and all Health-Care Decisions for the Principal, subject to the limitations stated herein and in the Act.
3.2 Scope of Authority. Unless expressly limited, the Agent may:
a. Consent to, refuse, or withdraw consent to any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a physical or mental condition;
b. Select and discharge Health-Care Providers and facilities;
c. Approve, sign, or refuse any documents or releases relating to medical treatment, including orders regarding life-sustaining treatment;
d. Authorize admission to or discharge from hospitals, nursing homes, or similar facilities;
e. Access the Principal’s protected health information (“PHI”) consistent with Section 6; and
f. Take any action “reasonably necessary” to carry out the foregoing.
3.3 Limitations.
[// GUIDANCE: Insert any specific treatments to which the Principal does not consent (e.g., electro-convulsive therapy) or any religious/ethical constraints.]
a. The Agent may not authorize voluntary inpatient mental health treatment exceeding [X] days without prior court order.
b. The Agent shall not make decisions that conflict with the Principal’s explicit written instructions in Section 5.
3.4 End-of-Life Decisions. See Section 5 for detailed directives.
4. AGENT’S DUTIES & STANDARD OF CARE
4.1 Fiduciary Duty. The Agent shall act in Good Faith, consistent with the Principal’s known wishes, religious or moral beliefs, and in the Principal’s best interest in the absence of such knowledge.
4.2 Consultation. Where practical, the Agent shall consult available health-care professionals and family members before making a decision.
4.3 Record-Keeping. The Agent shall maintain records of significant Health-Care Decisions made on the Principal’s behalf.
4.4 Delegation Prohibited. Except for an Alternate Agent designated herein, the Agent may not delegate decision-making authority.
4.5 Compensation & Expenses.
a. Compensation: [YES/NO] (If “YES,” state rate or method).
b. Reimbursement: The Agent is entitled to reimbursement of reasonable expenses incurred in Good Faith.
5. END-OF-LIFE & SPECIAL INSTRUCTIONS
5.1 Life-Sustaining Treatment.
a. Choice (select one):
☐ (i) I direct that life-sustaining treatment be withheld or withdrawn if I am terminally ill and such treatment would only prolong the dying process.
☐ (ii) I direct that life-sustaining treatment be provided regardless of prognosis.
[// GUIDANCE: South Dakota recognizes both directives under SDCL § 34-12D-2.]
5.2 Artificial Nutrition & Hydration.
a. Choice (select one):
☐ I consent to withholding artificial nutrition/hydration if it only prolongs death.
☐ I do not consent; nutrition/hydration shall continue.
5.3 Pain Relief. I authorize maximum pain relief, even if hastening death is a foreseeable consequence.
5.4 Organ & Tissue Donation.
a. Designation: [ALL ORGANS | SPECIFIC ORGANS | NONE].
b. Purposes: [TRANSPLANT | THERAPY | RESEARCH | EDUCATION].
5.5 Pregnancy Provision.
[// GUIDANCE: South Dakota law prohibits withdrawal of life-sustaining treatment from a pregnant patient under certain conditions. Include tailored language if the Principal may become pregnant.]
6. HIPAA AUTHORIZATION
6.1 Authorization Grant. Pursuant to 45 C.F.R. § 164.502(g)(2), the Principal authorizes the Agent (and any Alternate Agent who assumes authority) to request, receive, and disclose all PHI to the extent necessary to carry out duties under this Agreement.
6.2 Duration. This Authorization is effective immediately and shall remain in effect until the earlier of (a) the Principal’s death and the completion of all post-mortem decisions, or (b) revocation under Section 8.
6.3 Redisclosure Warning. PHI disclosed under this Authorization may be subject to redisclosure by the Agent and may no longer be protected by HIPAA.
7. RELIANCE, INDEMNIFICATION & LIABILITY LIMITATION
7.1 Reliance. A person who, in Good Faith, accepts an oral or written instruction from the Agent may rely on the representation that this Agreement is valid and in effect.
7.2 Agent Indemnification. The Principal agrees to indemnify and hold harmless the Agent from any loss, liability, or expense incurred for actions taken in Good Faith under this Agreement, except for willful misconduct or gross negligence.
7.3 Liability Cap. Consistent with SDCL § 34-12C-7, neither the Agent nor any Health-Care Provider acting in reliance on this Agreement shall be liable for civil or criminal damages or be subject to disciplinary action if acting in Good Faith.
8. REVOCATION, TERMINATION & SUCCESSOR AGENTS
8.1 Revocation by Principal. The Principal may revoke this Agreement at any time by (a) a signed writing, (b) personally informing the Health-Care Provider, or (c) any other method recognized under SDCL § 34-12C-6.
8.2 Automatic Termination. This Agreement terminates (i) upon the Principal’s death, except with respect to post-mortem decisions authorized herein, or (ii) upon revocation.
8.3 Successor Agents. If the Agent is unable or unwilling to serve, authority passes to the Alternate Agent(s) in the order listed in Section 1.2(c).
8.4 Divorce. If the Agent is the Principal’s spouse, the Agent’s authority terminates upon the filing of a divorce action unless the Principal affirmatively re-designates the Agent thereafter.
9. GOVERNING LAW; FORUM SELECTION; INJUNCTIVE RELIEF
9.1 Governing Law. This Agreement and all disputes arising under it shall be construed in accordance with the health-care laws of the State of South Dakota (“state_healthcare_law”).
9.2 Forum Selection. Exclusive jurisdiction for any proceeding to interpret or enforce this Agreement shall lie in the state probate court located in [COUNTY], South Dakota (“state_probate_court”).
9.3 Injunctive Relief. Because monetary damages are an insufficient remedy for unauthorized interference with the Principal’s health-care preferences, equitable relief (including specific performance and injunctive relief) is available to enforce this Directive.
9.4 Arbitration & Jury Waiver. No arbitration or jury-trial waiver is provided. All statutory rights to a jury trial remain intact.
10. GENERAL PROVISIONS
10.1 Amendments & Waivers. Any amendment must be in writing, signed by the Principal, and executed with the same formalities as this Agreement. No waiver shall be effective unless in writing.
10.2 Severability. If any provision is found unenforceable, the remaining provisions shall continue in full force, and the unenforceable provision shall be reformed to the minimum extent required to comply with law.
10.3 Entire Agreement. This document constitutes the entire Advance Directive and supersedes all prior oral or written health-care directives.
10.4 Counterparts & Electronic Signatures. This Agreement may be executed in counterparts, each of which is deemed an original. Electronic signatures and scanned PDFs shall be treated as originals to the fullest extent permitted by law.
10.5 Successors & Assigns. This Agreement is binding upon the Principal, the Agent, all Alternate Agents, and the Principal’s heirs, executors, administrators, and assigns.
11. EXECUTION BLOCKS
11.1 Principal
I, [PRINCIPAL NAME], declare that I am of sound mind and under no duress, fraud, or undue influence. I sign this Healthcare Power of Attorney on the date below.
Signature: ____
Name (printed): _____
Date: _____
11.2 Agent Acceptance
I, [AGENT NAME], accept the above designation and acknowledge my fiduciary duties under this Agreement and South Dakota law.
Signature: ____
Date: ________
11.3 Alternate Agent(s) Acceptance (Optional)
- ____ Date: _
- ____ Date: _
11.4 Witnesses
[// GUIDANCE: SDCL § 34-12C-3 requires either two adult witnesses OR notarization. Witnesses must be at least 18 and not the Agent or Health-Care Provider.]
We declare that the Principal signed or acknowledged this Agreement in our presence, appears to be of sound mind, and free from duress.
Witness #1 Signature: ____ Date: _
Print Name & Address: ________
Witness #2 Signature: ____ Date: _
Print Name & Address: ________
11.5 Notary Public (OPTIONAL if two witnesses sign)
State of South Dakota )
County of _______ ) ss.
On this ___ day of ____, 20__, before me, the undersigned Notary Public, personally appeared [PRINCIPAL NAME], known to me or satisfactorily proven to be the person whose name is subscribed to the within instrument, and acknowledged that he/she executed the same for the purposes therein contained.
In witness whereof I hereunto set my hand and official seal.
Notary Public
My commission expires: ____
[// GUIDANCE: File a copy with the Principal’s primary physician and provide copies to the Agent and Alternate Agents. Review every 2–3 years or upon major life events.]