Revocation of Statutory Equivalent of Living Will or Declaration
STATUTORY REFERENCE
ALL REFERENCES ARE TO THE SOUTH CAROLINA CODE
REVOCATION OF DECLARATION OF A DESIRE FOR A NATURAL DEATH
General Information (§ 44-77-20)
As used in In the South Carolina Death With Dignity Act:
A "declarant" is a person who has signed a declaration in accordance
with the statutory provisions of the Act.
"Life sustaining procedures" are any medical procedures or intervention
which would serve only to prolong the dying process and where, in the judgment
of the attending physician, death will occur whether or not the procedures
are utilized. Life sustaining procedures do not include the administration
of medication or other treatment for comfort care or alleviation of pain.
The declarant shall indicate in the declaration whether the provision of
nutrition and hydration through medically or surgically implanted tubes
is to be treated as a life sustaining procedure.
A "terminal condition" is an incurable or irreversible condition
that, within reasonable medical judgment, could cause death within a reasonably
short period of time if life sustaining procedures are not used.
"Permanent unconsciousness" is a medical diagnosis, consistent with
accepted standards of medical practice, that a person is in a persistent
vegetative state or some other irreversible condition in which the person
has no neocortical functioning, but only involuntary vegetative or primitive
reflex functions controlled by the brain stem.
When Life Sustaining Procedures May Be Withheld (§ 44-77-30)
Life sustaining procedures may be withheld or withdrawn upon the
direction and under the supervision of the attending physician if
- a person eighteen years of age or older adopts a declaration that is
substantially in the statutory form and that on its face is duly executed,
witnessed, and authenticated as provided by statute or is facially in compliance
with the law of the state of the declarant's domicile at the time that
the declaration is adopted; and
- the declaration provided for by the law expresses an intent that is
substantially the same as the intent of the declaration provided in the
South Carolina Code; and
- the person's present condition is certified to be terminal or to be
in a state of permanent unconsciousness by two physicians who personally
have examined the declarant, one of whom is the declarant's attending physician,
and the other of whom is a physician other than the attending physician.
A certification based upon a diagnosis of permanent unconsciousness
may not be made until the declarant has remained unconscious for at least
ninety consecutive days, or at any time if the declarant has experienced
massive destruction or atrophy of the cortex as evidenced by neurodiagnostic
studies or gross inspection of the brain, or if some other characteristic
of the declarant's condition allows a diagnosis of permanent unconsciousness
to be made with a high degree of medical certainty.
Declaration - Execution, Witnesses (§ 44-77-40)
A declaration is valid:
- which expresses that no life sustaining procedures be used to prolong
dying if his condition is terminal or if the declarant is permanently unconscious
and which states that the declarant is aware that the declaration authorizes
a physician to withhold or withdraw life sustaining procedures;
- which has been dated and signed by the declarant in the presence of
an officer authorized to administer oaths under the laws of the state where
the signing occurs and in the presence of two witnesses, one of whom may
be the officer authorized to administer oaths, who state in an affidavit
as set forth in Section 44-77-50 that, to the extent they have knowledge
of their status, they are not related to the declarant by blood, marriage,
or adoption, either as a spouse, lineal ancestor, descendant of the parents
of the declarant, or spouse of any of them, they are not directly financially responsible
for the person's medical care, they are not entitled to a portion of the estate
of the declarant upon his decease under a will of the declarant then existing
or as an heir by intestate succession, and they are not a beneficiary of a life
insurance policy of the declarant, and who state that no more than one
witness is an employee of a health facility in which the declarant is a
patient and that no witness to the declaration is the attending physician
or an employee of the attending physician or a person who has a claim against
a portion of the estate of the declarant upon his decease at the time of
the execution of the declaration;
- which, if the declarant is a patient in a hospital or a resident in
a nursing care facility at the time the declaration is executed, has been
witnessed by an ombudsman as designated by the State Ombudsman, with the
ombudsman acting as one of the two witnesses and having the same qualifications
as a witness as provided in this section; and
- which accompanying affidavit has been subscribed by the two witnesses
and sworn to by at least one of the two witnesses in the presence of the
declarant, and of each other, and of an officer authorized to administer
oaths under the laws of the state where the signing occurs. A witness to
a declaration who is also an officer authorized to administer oaths under
the laws of this State may notarize the signature of the other witness.
Form (§ 44-77-50)
The declaration must be substantially in the statutory form.
Revocation (§ 44-77-80)
A declaration may be revoked:
- by being defaced, torn, obliterated, or otherwise destroyed in expression
of the declarant's intent to revoke by the declarant or by some person
in the presence of and by the direction of the declarant. Revocation by
destruction of one or more of multiple original declarations revokes all
of the original declarations. The revocation of the original declarations
actually not destroyed becomes effective only upon communication to the
attending physician;
- by a written revocation signed and dated by the declarant expressing
his intent to revoke. The revocation becomes effective only upon communication
to the attending physician; or
- by an oral expression by the declarant of his intent to revoke the
declaration.
A revocation becomes effective only upon communication to the
attending physician by the declarant. However, an oral revocation made
by the declarant becomes effective upon communication to the attending
physician by a person other than the declarant:
- if the person was present when the oral revocation was made;
- if the revocation was communicated to the physician within a reasonable
time;
- if the physical or mental condition of the declarant makes it impossible
for the physician to confirm through subsequent conversation with the declarant
that the revocation has occurred; or
- by a written, signed, and dated revocation or by an oral revocation
by the declarant's designee, expressing the designee's intent to permanently
or temporarily revoke the declaration.
A designee may revoke a declaration only if the declarant is incompetent
to do so.
A declarant's execution of a subsequent declaration is a revocation
of an earlier declaration.
Effectiveness of Declaration (§ 44-77-85)
The declarant may indicate in the declaration whether he wants to
appoint an agent to act on his behalf in assuring that the declaration
is given effect by petitioning the court of common pleas for an order directing
providers to withhold or withdraw treatment as provided in the declaration.
The authority of a person designated pursuant to this section is not affected
by the subsequent appointment of a guardian or by the declarant's execution
of a durable power of attorney before or after execution of the declaration.
If an agent is not reasonably available, or is unable or unwilling
to ensure that the declaration be given effect, an interested person may
petition the court of common pleas for an order directing providers to
withhold or withdraw treatment as provided in the declaration.
Nothing in this section alters the self executing nature of a declaration
or requires that a court order be obtained or other affirmative action
be taken to make the declaration valid or to bring about its implementation.
This section does not apply to a declaration that has been revoked.
Reliance on Declaration (§ 44-77-90)
After certification of a terminal condition or a state of permanent
unconsciousness, any person who relies on a declaration which on its face
appears to have been executed in accordance with the statutory requirements
and of which he has no actual notice of revocation, and who withholds or
withdraws or participates in the withholding or withdrawal of life sustaining
procedures from the terminally ill or permanently unconscious patient who
executed the declaration, is presumed to be acting in good faith.
A physician who in good faith certifies that a patient's condition
is terminal or that the patient is permanently unconscious is not subject
to liability merely on account of certification. Any person who in good
faith and in accordance with the provisions of this chapter participates
in the withholding or withdrawal of life sustaining procedures from the
patient is not subject to criminal or civil liability on account of the
withholding or withdrawal. The immunity from civil liability does not extend
to cases in which a physician deviates from standards of reasonable medical
care in connection with the decision to withhold or withdraw.
Suicide (§ 44-77-110)
The execution and consummation of declarations made in accordance
with the statutory guidelines do not constitute suicide.
Penalties (§ 44-77-160)
If any person coerces or fraudulently induces another person to
execute a declaration, falsifies or forges a declaration, or willfully
conceals, cancels, obliterates, or destroys a revocation of a declaration,
and the declarant dies as a result of the withdrawal of treatment or nontreatment
in reliance on the declaration, that person is subject to prosecution in
accordance with the criminal laws of South Carolina.
If any person willfully conceals, cancels, defaces, obliterates,
or damages the declaration of another without the declarant's consent or
falsifies or forges a revocation of the declaration of another, that person
breaches a duty owed to the declarant and is responsible for payment of
any expenses or other damages incurred as a result of the wrongful act.
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