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Living Will in South Dakota: The Declaration, Health Care Power of Attorney and Default Decision-Makers

A South Dakota living will needs two adult witnesses or a notary, and so does a durable power of attorney for health care. Here is how both work, and who decides when there's neither.

By naveen · Updated October 13, 2026 · How we research our guides

A living will in South Dakota, called a living will declaration, lets your parent direct whether life-sustaining treatment is withheld or withdrawn if they're in a terminal condition. Under SDCL 34-12D-2, "A competent adult may at any time execute a declaration governing the withholding or withdrawal of life-sustaining treatment." It "must be signed by the declarant, or by another at the declarant's direction, and witnessed by two adults, or by a notary public who shall thereafter notarize the declaration."

What is a living will declaration in South Dakota?

It's a written declaration under SDCL chapter 34-12D, titled "Living Wills," that directs whether life-sustaining treatment is withheld or withdrawn. Life-sustaining treatment means "any medical procedure or intervention that, when administered to a patient, will serve only to postpone the moment of death or to maintain the patient in a condition of permanent unconsciousness." It doesn't include comfort care, food and water by mouth, or pain medication.

The statute prints a sample "LIVING WILL DECLARATION," and a declaration "may, but need not, be in the following form." On the sample, your parent initials one choice about life-sustaining treatment, such as "I choose not to prolong my life," or the opposite, or writes their own instructions, and then initials one choice about artificial nutrition and hydration. That second choice is required: if a declaration doesn't state a preference, the decision falls under the law that applies when there's no declaration.

How is it different from a health care power of attorney?

A living will declaration gives your parent's own instructions about life-sustaining treatment, while a durable power of attorney for health care names an agent to make health care decisions when your parent lacks capacity.

Your parent can have both. "If an individual has executed both a declaration and a durable power of attorney, the later executed document shall control to the extent that its provisions conflict." A financial power of attorney doesn't cover medical decisions; see our South Dakota power of attorney guide. For the general picture, see power of attorney vs. advance directive.

How do you sign a South Dakota living will?

Your parent signs, or someone signs at their direction, and then either two adults witness it or a notary notarizes it. The sample form notes that "the form provides signature lines for you, the two witnesses whom you have selected, and a notary public," and that "This form is entirely optional."

Chapter 34-12D, as we read it, doesn't list people who are barred from witnessing. A health care provider may assume a declaration is valid "In the absence of actual knowledge to the contrary." The form also suggests giving copies "to your family, your physician, and your health care facility."

When does the living will apply?

"A living will declaration becomes operative when the declarant is determined by the attending physician to be in a terminal condition, death is imminent, and the declarant is no longer able to communicate decisions about medical care" (SDCL 34-12D-5). Until then, your parent makes their own decisions about life-sustaining treatment "so long as the patient is able to do so."

A provider who won't take part in withholding or withdrawing treatment must make a reasonable effort to transfer your parent to one who will honor the declaration. And no one may require a declaration, or forbid one, as a condition of insurance or care. Treatment is handled differently during a pregnancy, under a separate rule in the chapter.

How does a durable power of attorney for health care work?

Under SDCL 59-7-2.1, your parent "may designate any other person as the principal's attorney-in-fact or agent for health care decisions," and the agent "shall have the authority to make any health care decision at any time during which the principal lacks capacity." It must be signed by your parent, or in their conscious presence at their direction, and "The signature shall be witnessed by two other adult individuals or by a notary public." The sections we read don't list people who can't witness or serve as agent, and they don't prescribe a form.

The agent can't decide while the attending physician has determined in good faith that your parent has decisional capacity. Decisions must follow accepted medical standards, and the agent "shall consider the recommendation of the attending physician," what your parent would have decided, if known, and their best interest. The agent "may not authorize the withholding or withdrawal of comfort care," and can stop tube feeding only in listed situations, one being your parent's express written authorization in the document.

If a court later appoints a guardian of your parent's person, the health care power of attorney ends, "but the guardian shall follow any provisions contained in the power of attorney for health care delineating the principal's wishes for medical and end-of-life care" (SDCL 59-7-11).

What happens if your parent has no living will or health care agent?

South Dakota law lets family members, and then a close friend, make health care decisions in a set order. Under SDCL 34-12C-3, if there's no durable power of attorney for health care or guardian, or neither is available, decisions may be made by these people, in order:

1. the spouse, if not legally separated;
2. an adult child;
3. a parent;
4. an adult sibling;
5. a grandparent or an adult grandchild;
6. an adult aunt or uncle, adult cousin, or adult niece or nephew;
7. a close friend.

A close friend is an adult who "has provided significant care and exhibited concern for the patient" and keeps regular contact. The decision-maker must follow your parent's known wishes, otherwise act in their best interest, and "may not arbitrarily refuse consent." If people in the same class disagree, the circuit court can step in. Your parent can also disqualify a family member ahead of time, in a signed document or by a notation in their medical record made at their direction. See conservatorship and guardianship for the court route.

How do you revoke a South Dakota advance directive?

Your parent can revoke a living will at any time and in any manner, effective once the health care provider is told, and a health care power of attorney ends by revocation as to everyone who has notice of it.

• Living will. "A declarant may revoke a declaration at any time and in any manner without regard to the declarant's mental or physical condition. A revocation is effective upon communication to the health care provider" (SDCL 34-12D-8).
• Durable power of attorney for health care. Chapter 59-7 ends an agency by "Revocation by the principal" as to everyone with notice, but the health care sections we read don't prescribe a method. Because the revocation works as to people with notice, getting written notice to the agent and the doctor matters.

What about MOST and Comfort One?

A MOST, Medical Order for Scope of Treatment, is for a patient diagnosed with a terminal condition and is signed by the patient or their authorized representative and by a physician, physician assistant or certified nurse practitioner (SDCL 34-12H). The South Dakota Department of Health says, "MOST is not a legal document. It is a transportable medical order signed by a healthcare provider for individuals with a terminal illness." If a MOST conflicts with a living will or health care power of attorney, providers follow "the most recent instruction."

Comfort One is South Dakota's EMS resuscitation directive. According to the Department of Health, "The Comfort One form must be signed by your physician, nurse practitioner, or physician assistant," and individuals "should request the form from their healthcare provider."

Frequently asked questions

Does a living will need to be notarized in South Dakota?

No, a notary is one of two options. Under SDCL 34-12D-2, your parent's living will declaration must be witnessed by two adults or by a notary who notarizes it. The statute's sample form has lines for both. A durable power of attorney for health care follows the same choice: two adult witnesses or a notary.

Who can witness a living will in South Dakota?

Two adults. Chapter 34-12D, as we read it, doesn't list relatives, heirs, doctors or anyone else as barred from witnessing, and the health care power of attorney statute doesn't either. The other option is a notary, and the sample form has a notary block.

Where can I get a South Dakota living will form?

The sample Living Will Declaration is printed in SDCL 34-12D-3 on the Legislature's website, and using it is optional. Whatever form your parent uses must state their preferences about artificial nutrition and hydration. Copies should go to family, the doctor and any health care facility.

Who makes medical decisions in South Dakota if there's no living will?

If there's no health care agent or guardian, SDCL 34-12C-3 sets the order: a spouse who isn't legally separated, then an adult child, a parent, an adult sibling, a grandparent or adult grandchild, an adult aunt, uncle, cousin, niece or nephew, and finally a close friend. A disagreement within a class can go to the circuit court.

Is a living will from another state valid in South Dakota?

Yes, if it met the right rules. Under SDCL 34-12D-22, a declaration is valid if it meets the execution requirements of the state where your parent lived when signing, the state where it was signed, or South Dakota. The health care power of attorney sections we read don't include a similar out-of-state rule.

Can my parent change their mind after signing?

Yes. Your parent can revoke a living will declaration at any time and in any manner, whatever their mental or physical condition, and it takes effect once communicated to the health care provider. Telling the doctor promptly, and giving them any new document, keeps the medical record current.

Getting started

A living will only helps if it's signed while your parent can sign it, with two adult witnesses or a notary, and if a copy reaches the doctor. Naming a health care agent avoids relying on the default list. The plan this site builds asks four questions, including which state your parents live in, and puts the steps that matter most for your family in order. It's free and takes about 90 seconds.

Build your plan

Sources

• South Dakota Codified Laws chapter 34-12D, Living Wills: signing (34-12D-2), the sample form (34-12D-3), conflicts (34-12D-4), when it applies (34-12D-5), revocation (34-12D-8) and out-of-state declarations (34-12D-22); published by the Legislative Research Council.
• South Dakota Codified Laws chapter 59-7: the durable power of attorney for health care (59-7-2.1 to 59-7-2.8) and guardianship (59-7-11).
• South Dakota Codified Laws chapter 34-12C, Health Care Consent Procedures: who decides without a document (34-12C-3).
• South Dakota Codified Laws chapter 34-12H: the MOST.
• South Dakota Department of Health, Advance Directives and Medical Orders: MOST and Comfort One.

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