Living Will/Advance Directive

SOUTH DAKOTA

ADVANCE HEALTH CARE DIRECTIVE

(Living Will & Durable Power of Attorney for Health Care)

TABLE OF CONTENTS

1. Document Header
2. Definitions

3. Operative Provisions
   3.1 Appointment of Health-Care Agent
   3.2 Scope of Agent’s Authority
   3.3 Living Will Instructions
   3.4 Organ & Tissue Donation
   3.5 Nomination of Guardian
   3.6 Effectiveness & Duration

4. Representations & Warranties

5. Covenants & Restrictions
6. Default & Remedies
7. Risk Allocation
8. Dispute Resolution
9. General Provisions (Incl. Revocation)
10. Execution Block

1. DOCUMENT HEADER

1.1 Title and Parties
THIS ADVANCE HEALTH CARE DIRECTIVE (“Directive”) is executed by [PRINCIPAL FULL LEGAL NAME], date of birth [MM/DD/YYYY] (“Principal”), residing at [ADDRESS], State of South Dakota.

1.2 Effective Date
This Directive becomes effective upon the first to occur of:
a. Principal’s incapacity to make or communicate health-care decisions, as determined in writing by the attending physician; or
b. Principal’s written election of immediate effectiveness in Section 3.6(b).

1.3 Governing Law
This Directive shall be governed by and construed in accordance with the laws of the State of South Dakota, including S.D. Codified Laws §§ 34-12D-1 et seq.

2. DEFINITIONS

For purposes of this Directive, capitalized terms have the meanings set forth below. All defined terms apply equally to singular and plural forms.

“Advance Directive” or “Directive” – This instrument, consisting of both a Living Will and a Durable Power of Attorney for Health Care.

“Agent” – The individual designated in Section 3.1(a) to make health-care decisions on the Principal’s behalf.

“Alternate Agent” – Any successor representative designated in Section 3.1(b).

“Attending Physician” – The physician having primary responsibility for the Principal’s care.

“Good Faith” – Honesty in fact and the observance of reasonable health-care standards applicable under the circumstances.

“Health-Care Decision” – Any decision regarding the Principal’s health-care, including consent, refusal of consent, or withdrawal of consent to any care, treatment, service, or procedure.

“Life-Sustaining Treatment” – Any medical intervention that, in reasonable medical judgment, sustains life and without which death is likely to occur shortly, including artificial nutrition and hydration.

“Living Will” – The Principal’s instructions in Section 3.3 concerning life-sustaining treatment and related matters.

“Provider” – Any physician, hospital, long-term care facility, hospice, or other individual or entity licensed to provide health-care services.

3. OPERATIVE PROVISIONS

3.1 Appointment of Health-Care Agent

(a) Primary Agent. Principal hereby appoints [PRIMARY AGENT FULL NAME], residing at [ADDRESS], telephone [PHONE], as Agent to make any and all Health-Care Decisions on behalf of Principal.

(b) Alternate Agent(s). If the Primary Agent is unable, unwilling, or reasonably unavailable to act, the following persons shall serve successively as Alternate Agent:

1. [ALTERNATE AGENT #1 NAME], [ADDRESS / PHONE]
2. [ALTERNATE AGENT #2 NAME], [ADDRESS / PHONE]

3.2 Scope of Agent’s Authority

(a) General Grant. Agent is authorized to make any Health-Care Decision Principal could make if able, including but not limited to:

1. Selection or discharge of Providers;
2. Approval or refusal of diagnostic tests, surgical procedures, and medications;
3. Decisions regarding long-term care, hospice, and home health services;
4. Access to, and disclosure of, medical records (pursuant to 45 C.F.R. § 164.502(g)).

(b) Limitations. The Agent’s authority is subject to:
i. Any express limitations in this Directive;
ii. Applicable law; and
iii. A Good-Faith reliance on medical advice from the Attending Physician.

(c) End-of-Life Decisions. Unless expressly limited herein, Agent may withdraw or withhold Life-Sustaining Treatment consistent with Section 3.3 and Principal’s known wishes.

3.3 Living Will Instructions

(a) Statement of Intent. If I have an incurable or irreversible condition that will result in death within a relatively short time, or I am in a persistent vegetative state, it is my desire that my life [BE / NOT BE] prolonged by Life-Sustaining Treatment.

(b) Artificial Nutrition & Hydration. My preference with regard to artificial nutrition and hydration is:
☐ (1) Provide artificial nutrition and hydration.
☐ (2) Withhold artificial nutrition and hydration.
☐ (3) Agent to decide after consultation with medical professionals.

(c) Pain Relief. I direct that adequate pain relief be provided at all times, even if such medication may unintentionally hasten my death.

(d) Additional Instructions. [DESCRIBE ANY ADDITIONAL OR RELIGIOUS PREFERENCES.]

3.4 Organ & Tissue Donation

[OPTIONAL ☐] Upon my death, I give:
☐ (a) Any needed organs or tissues.
☐ (b) Only the following: [SPECIFY].
☐ (c) No organs or tissues.

3.5 Nomination of Guardian

If a court deems a guardian or conservator necessary, I nominate my Agent, in the order named in Section 3.1, to serve as such guardian or conservator.

3.6 Effectiveness & Duration

(a) Durable Nature. This Directive is durable and shall not be affected by the Principal’s subsequent incapacity except as revoked under Section 9.3.

(b) Immediate Effectiveness (Optional). ☐ I elect that my Agent’s authority commence immediately upon execution of this Directive.

4. REPRESENTATIONS & WARRANTIES

4.1 Principal represents and warrants that:
a. Principal is at least eighteen (18) years of age and of sound mind;
b. Execution of this Directive is voluntary and free from undue influence; and
c. All information provided herein is true, complete, and accurate.

4.2 Agent accepts the appointment and warrants that Agent will:
a. Act in Good Faith and in the Principal’s best interest;
b. Consult applicable medical professionals; and
c. Maintain reasonable documentation of decisions made.

5. COVENANTS & RESTRICTIONS

5.1 Principal covenants to provide copies of this Directive to the Agent, Alternate Agents, and relevant Providers.

5.2 Agent covenants to:
a. Follow Principal’s written or, if unknown, oral instructions;
b. Comply with all applicable privacy laws;
c. Promptly communicate decisions to Providers; and
d. Resign by written notice if unable or unwilling to serve.

6. DEFAULT & REMEDIES

6.1 Events of Default. The following constitute defaults:
a. Agent’s failure to act in Good Faith;
b. Material breach of Agent’s duties;
c. Conflict of interest materially affecting decision-making.

6.2 Remedies. Upon default, any interested person may petition a court of competent jurisdiction to:
i. Remove or suspend the Agent;
ii. Appoint an Alternate Agent or guardian;
iii. Compel or enjoin certain health-care actions;
iv. Award reasonable attorney’s fees and costs.

7. RISK ALLOCATION

7.1 Provider Protection. A Provider acting in Good Faith reliance on this Directive, or on instructions from an Agent acting hereunder, shall not incur liability or be subject to professional discipline for such reliance.

7.2 Indemnification. Principal agrees to indemnify and hold harmless any Provider for actions taken in Good Faith compliance with this Directive, except for gross negligence or willful misconduct.

7.3 Limitation of Liability. No Agent or Provider shall be liable for consequential, exemplary, or punitive damages for Good Faith acts or omissions under this Directive.

8. DISPUTE RESOLUTION

8.1 Governing Law. South Dakota law governs all disputes arising under this Directive.

8.2 Forum Selection. Not applicable. Any legal proceeding shall be filed in a court of competent jurisdiction within the State of South Dakota.

8.3 Arbitration. Not applicable.

8.4 Jury Waiver. Not applicable.

8.5 Injunctive Relief. Nothing herein restricts any party’s right to seek temporary, preliminary, or permanent injunctive relief to enforce the terms of this Directive or prevent irreparable harm.

9. GENERAL PROVISIONS

9.1 Amendment & Waiver

Principal may amend this Directive at any time by executing a subsequent writing that complies with the requirements of S.D. Codified Laws § 34-12D-3. No oral waiver or amendment shall be effective.

9.2 Copies and Reliance

Photographic or electronically transmitted copies of this executed Directive shall have the same force and effect as the original.

9.3 Revocation Procedures

Principal may revoke this Directive by:
a. A signed and dated written revocation;
b. Physical cancellation, obliteration, or destruction of the original Directive by Principal or by another at Principal’s direction;
c. An oral statement of intent to revoke, communicated to the Attending Physician and at least one witness; or
d. Execution of a subsequent Advance Directive.

9.4 Severability

If any provision of this Directive is held invalid or unenforceable, the remainder shall remain in full force and effect, and the invalid provision shall be reformed to the minimum extent necessary to comply with applicable law.

9.5 Integration

This Directive constitutes the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior advance directives executed by Principal.

9.6 Successors and Assigns

The rights and duties herein shall inure to the benefit of and be binding upon the Principal’s heirs, executors, administrators, and personal representatives. This Directive is personal to the Principal and may not be assigned.

9.7 Electronic Signatures

Pursuant to S.D. Codified Laws ch. 53-12, an electronic signature or notarization meeting state requirements shall be deemed an original for all purposes.

10. EXECUTION BLOCK

10.1 Principal’s Signature

I, [PRINCIPAL NAME], have read and understand this Directive and sign it voluntarily.

10.2 Witness Attestation (Two adult witnesses OR a Notary must complete this section)

Each witness declares that the Principal is personally known to the witness, appeared to be of sound mind and under no duress, and signed or acknowledged this Directive in the witness’s presence. At least one witness is not related to the Principal by blood, marriage, or adoption and is not entitled to any portion of the Principal’s estate.

10.3 Notary Acknowledgment (OPTIONAL – Complete if using a notary instead of two witnesses)

State of South Dakota
County of __________________

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 this instrument, and acknowledged that he/she executed the same for the purposes therein contained.

Notary Public Signature: ______________________________

Print Name: _________________________________________

My commission expires: _______________________________

Seal:

10.4 Agent Acceptance (Highly recommended though not required by statute)

I, the undersigned Agent (and any Alternate Agent), have read this Directive, accept the appointment, and agree to act in Good Faith and in accordance with the Principal’s instructions and South Dakota law.