Revocation of Statutory Living Will
STATUTORY REFERENCE
ALL REFERENCES ARE TO THE SOUTH DAKOTA STATUTES
REVOCATION OF LIVING WILL DECLARATION
General Information (§ 34-12D-1)
An "attending physician" is the physician who has primary responsibility
for the treatment and care of the patient.
A "declaration" is a writing executed in accordance with the statutory
requirements.
A "health-care provider" is any person who is licensed, certified
or otherwise authorized by law to administer health care in the ordinary
course of business or practice of a profession, including any person employed
by or acting for any such authorized person.
"Life sustaining treatment" is any medical procedure or intervention
that, when administered to a qualified patient, will serve only to postpone
the moment of death or to maintain the patient in a condition of permanent
unconsciousness. The term does not include the provision of appropriate
care to maintain comfort, hygiene and human dignity, the oral administration
of food and water, or the administration of any medication or other medical
procedure deemed necessary to alleviate pain.
A "qualified patient" is an adult individual who has executed a declaration
and who has been determined by the attending physician and one other physician
to be in a terminal condition.
A "terminal condition" is an incurable and irreversible condition
that, in accordance with accepted medical standards, will cause death within
a relatively short time if life sustaining treatment is not administered,
or a coma or other condition of permanent unconsciousness that, in accordance
with accepted medical standards, will last indefinitely without significant
improvement and in which the individual is unable to communicate verbally
or nonverbally, demonstrates no purposeful movement or motor ability, and
is unable to interact purposefully with environmental stimulation.
Execution of Declaration (§ 34-12D-2)
A declaration must be signed by the declarant, or another at the
declarant's direction, and witnessed by two adult individuals. The signing
may be in the presence of a notary public who shall thereafter notarize
the declaration.
A declaration should state the declarant's preferences regarding
whether the declarant wishes to receive or not receive artificial nutrition
and hydration. If the declaration does not state the declarant's preferences
with respect to artificial nutrition and hydration, whether artificial
nutrition and hydration is to be provided, withheld, or withdrawn shall
be governed by the law of South Dakota which would apply in the absence
of a declaration.
Form (§ 34-12D-3)
A declaration is not required to be in the form provided in the
statute.
Conflicts in Documents (§ 34-12D-4)
If an individual has executed both a declaration and a durable power
of attorney for health care, the later executed document shall control
to the extent that its provisions conflict with the provisions of the earlier
executed document. There is no statutory presumption that an attorney in
fact may not participate in the implementation of a declaration.
When Declaration Operative (§ 34-12D-5)
A declaration becomes operative when the declarant is determined
by the attending physician and one other physician to be in a terminal
condition and no longer able to make decisions regarding administration
of life sustaining treatment. If the declaration becomes operative, the
attending physician and other health-care providers shall act in accordance
with the declaration.
Right to Make Decisions (§ 34-12D-6)
A qualified patient may make decisions regarding life sustaining
treatment so long as the patient is able to do so.
Revocation (§ 34-12D-8)
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 attending physician
or other health-care provider. The attending physician or health-care provider
must make the revocation a part of the declarant's medical record.
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