South Dakota Advance Directive and Living Will

A South Dakota advance directive is usually two separate papers. A durable power of attorney for health care names the person who decides for you (SDCL 59-7-2.1), and a living will declaration states what end-of-life treatment you want (SDCL 34-12D-2). Each one is valid when you sign it before two adult witnesses or a notary public. You do not need both. A living will must also state your choice on artificial nutrition and hydration, the feeding-tube question.

Settled Estate read every rule on this page in the South Dakota Codified Laws on September 27, 2026. Use it as a map of the statutes, then have a South Dakota attorney review the documents you plan to sign. It is not legal advice.

Three Instruments, Three Chapters

South Dakota never passed one health care decisions act. Its rules sit in separate chapters written years apart, and SDCL 34-12H-1 ties them together with one defined term. An "advance health care directive" means any of these three:

a durable power of attorney for health care signed under 59-7-2.1 to 59-7-2.4,
a living will signed under chapter 34-12D, or
an EMS cardiopulmonary resuscitation directive signed under chapter 34-12F, which the Department of Health runs as Comfort One.

A fourth document, the Medical Order for Scope of Treatment (MOST) under chapter 34-12H, is a doctor's order for a patient who is already terminally ill. The statute says a MOST is "a document, other than an advance health care directive" (34-12H-1(9)). It sits beside your directives rather than replacing them.

Here is how the two documents you sign while healthy compare.

	Health care power of attorney	Living will declaration
Statute	SDCL 59-7-2.1	SDCL 34-12D-2
What it does	Names an agent to make health care decisions	States your wishes on life-sustaining treatment
Who signs	You, or another person in your conscious presence at your direction	You, or another person at your direction
Signing method	Two adult witnesses OR a notary public	Two adults as witnesses OR a notary public
Statutory form	None	Optional sample form, 34-12D-3
When it works	Whenever you lack capacity (59-7-2.1)	Terminal condition, imminent death, and you cannot communicate (34-12D-5)
Feeding tubes	Agent may stop them only in six listed situations (59-7-2.7)	Must state your preference (34-12D-2)

The Health Care Power Of Attorney

SDCL 59-7-2.1 lets you name "any other person" as your attorney-in-fact or agent for health care decisions. Your agent may make any health care decision "at any time during which the principal lacks capacity." The document may let your agent consent to, reject, or withdraw consent for any care, service or procedure to maintain, diagnose or treat a physical or mental condition.

The signing rule is short:

You sign it, or another individual signs your name in your conscious presence because you directed it.
Two other adults witness the signature, or a notary public does.

Section 59-7-2.1 lists no other witness rule. It does not bar your agent, a relative or a nurse from serving as a witness, and it states no minimum age for the principal. Some national forms add witness restrictions from other states. Those are the form writer's choices, not South Dakota law.

It sits outside the financial power of attorney act

South Dakota's Uniform Power of Attorney Act, chapter 59-12, does not apply to "a power to make health care decisions" (SDCL 59-12-2(2)). That matters because chapter 59-12 has two strict rules: a financial power must be notarized, and it survives your incapacity only if it says so. Neither rule reaches the health care document. A health care power works by its own terms while you lack capacity, and a pair of adult witnesses can replace the notary. For the money side, read the financial power of attorney guide.

Unless your document names an end date, your agent's authority does not lapse with time (59-7-9). You can also use the document to nominate a guardian of your person or a conservator of your estate, and the court must follow your most recent nomination except for good cause or disqualification (SDCL 59-7-2.4).

What your agent may and may not decide

Under SDCL 59-7-2.5, your agent may make any health care decision you could make yourself, in line with accepted medical standards. Each time, the agent must weigh three things: the attending physician's recommendation, the decision you would have made if known, and your best interest.

Three limits apply:

Your doctor's finding controls. If your attending physician decides in good faith that you have decisional capacity, your agent cannot decide for you (59-7-2.6).
Comfort care stays. Your agent may never authorize withholding or withdrawing comfort care (SDCL 59-7-2.7).
Feeding tubes follow a list. Your agent may stop artificial nutrition or hydration only if at least one of six situations exists: it is not needed for comfort and death is imminent; your body cannot absorb it; its burden outweighs its benefit, judged by the treatment itself and not the quality of your life; clear and convincing evidence shows you wanted it withheld; your document says to withhold it; or your document expressly lets the agent direct that choice.

If you feel strongly about feeding tubes, write it into the document. The last two items on that list exist so you can.

If your agent is unavailable or refuses to decide, the physician proceeds as if you had named no one (59-7-2.6), and the family list below applies.

The Living Will Declaration

SDCL 34-12D-2 lets "a competent adult" sign a declaration governing the withholding or withdrawal of life-sustaining treatment. An adult is 18 or older (SDCL 26-1-1). The declaration must be signed by you, or by another person at your direction, and witnessed by two adults, or by a notary public who then notarizes it.

The same section, last amended by SL 2023 ch 115 (Senate Bill 180), adds a content rule. The declaration must state your preference on artificial nutrition and hydration. If it does not, the declaration still stands, but the feeding-tube decision is governed by the South Dakota law that applies when there is no declaration at all. An old or out-of-state form that skips the question leaves that one choice to your agent or family.

"Life-sustaining treatment" does not include comfort, hygiene and dignity care, food and water taken by mouth, or pain medication (SDCL 34-12D-1(4)). A living will cannot turn those off.

The sample form

SDCL 34-12D-3 prints an optional "LIVING WILL DECLARATION" and says a declaration "may, but need not, be in the following form." It asks you to initial one choice on life-sustaining treatment:

do not prolong your life if death is imminent or you are permanently unconscious, but keep you comfortable and control pain,
prolong your life even then, or
neither, followed by lines for your own instructions.

A second initialed choice covers artificial nutrition and hydration, which the form defines as food and water by a tube into the stomach or intestine or a needle into a vein. The form carries lines for two witnesses and a notary. You need one method or the other, so a form with two adult witness signatures and a blank notary block still meets 34-12D-2.

When it takes effect

A living will is narrower than most people expect. It becomes operative only when your attending physician determines that you are in a terminal condition, that death is imminent, and that you are no longer able to communicate your decisions (SDCL 34-12D-5). A terminal condition means an incurable and irreversible condition in which death is imminent without life-sustaining treatment, or a coma or other permanent unconsciousness expected to last indefinitely (34-12D-1(7)).

A living will does nothing during a temporary illness, a surgery, or dementia that is not yet terminal. The health care power of attorney covers those gaps, which is why the two documents work as a pair.

Two more rules apply. If you are pregnant, life-sustaining treatment and artificial nutrition and hydration continue unless the attending physician and a second examining physician certify on your chart that they will not permit the pregnancy to continue to a live birth, or will harm you or prolong severe pain (SDCL 34-12D-10). And a provider who will not take part in withdrawing treatment must make a reasonable effort to transfer you to one who will honor the declaration (34-12D-11).

When You Have Both Documents

If you signed a living will and a durable power of attorney, the later-signed document controls to the extent the two conflict (SDCL 34-12D-4). Nothing stops your agent from helping carry out your living will. Date both documents, and when you update one, read the other for conflicts.

No South Dakota statute creates a combined form. Nothing forbids putting both documents in one signed and witnessed paper, but each still has to meet its own signing rule.

Who Decides If You Have No Directive

When you cannot give informed consent and have no health care agent or guardian of the person, or neither is available, SDCL 34-12C-3 sets the order of people who may decide:

Your spouse, if not legally separated
An adult child
A parent
An adult sibling
A grandparent or an adult grandchild
An adult aunt or uncle, adult cousin, or adult niece or nephew
A close friend

South Dakota's list ends with a close friend. SDCL 34-12C-1(8) defines one as an adult who has cared for you and shown concern for you, and who has kept in regular contact so as to know your activities, health, and religious or moral beliefs.

The list has three features worth planning around:

You can remove someone. Before any court finds you incompetent, you may disqualify any family member from deciding. Do it in a document you sign, or by a notation in your medical record made at your direction.
Family members can hand off. A family member may delegate the decision to another family member in the same or a later class, in a signed delegation that may carry conditions.
Ties go to court. If two or more people in the same class disagree, the circuit court may step in (SDCL 34-12C-4).

Whoever decides must follow your express wishes if known, act in good faith and in your best interest, and may not arbitrarily refuse consent (34-12C-3). A family decision works only after a guardian is appointed, a court finds you incapable, or your attending physician makes that finding in good faith, in writing and signed in your chart (SDCL 34-12C-2).

If your spouse is separated but not divorced, or your nearest relative is someone you would not trust, the default list is a reason to sign a health care power of attorney now.

A Guardian Ends The Health Care Power Of Attorney

This South Dakota rule surprises families. If a court appoints a guardian of your person after you sign a health care power of attorney, your health care power of attorney terminates at the time of the appointment (SDCL 59-7-11). The guardian must still follow any provisions in the document stating your wishes for medical and end-of-life care.

Two things protect you. A health care agent who can act may leave a court with no reason to appoint a guardian, and your nomination under 59-7-2.4 steers the court toward the person you chose if it does. For the court process and its alternatives, see South Dakota guardianship planning.

Medical Orders: MOST And Comfort One

MOST

A MOST is for a patient already diagnosed with a terminal condition (34-12H-1(10)). A patient with decision-making capacity, or the patient's authorized representative if the patient lacks it, may sign one (SDCL 34-12H-2). Under SDCL 34-12H-4 the standardized form records CPR and treatment choices, confirms a discussion with the medical provider, and carries the signature and date of the patient or representative and of the provider, who may be a physician, physician assistant or certified nurse practitioner. It needs no witness or notary.

By default the form directs artificial nutrition and hydration unless it cannot be expected to prolong life, its burden outweighs its benefit, giving it would cause the patient marked discomfort, or the patient has said no to tube feeding (34-12H-4(5)). If a MOST conflicts with your oral instructions or an advance directive, the provider follows the most recent instruction (SDCL 34-12H-8). A MOST valid in another state is valid in South Dakota (34-12H-6), and no provider may require or prohibit one as a condition of care (34-12H-11).

Comfort One

Comfort One is South Dakota's EMS do-not-resuscitate directive under chapter 34-12F. It is a medical order signed by or on behalf of the patient and by a physician, physician assistant or certified nurse practitioner, telling EMS personnel not to attempt resuscitation in a cardiac or respiratory arrest (SDCL 34-12F-1). EMS crews and facilities must follow a directive that is apparent and immediately available (34-12F-4).

The Department of Health says to request the form from your health care provider. An optional Comfort One bracelet costs $45.50 and can be used in place of the form for identification. The department places the information from a completed form in its Comfort One database.

South Dakota has no statewide advance directive registry. None of the statutes above creates one, and the Comfort One database covers only the EMS directive. Give copies of your health care power of attorney and living will to your agent, your family and each doctor and hospital you use. The sample form in 34-12D-3 gives the same advice.

Changing Or Revoking Your Documents

Living will. You may revoke it at any time and in any manner, whatever your mental or physical condition. The revocation takes effect when it is communicated to your health care provider, who must add it to your medical record (SDCL 34-12D-8).
Health care power of attorney. Chapter 59-7 has no revocation section written for it. The general agency rule ends an agency by the principal's revocation, as to every person who has notice of it (SDCL 59-7-2). Revoke in writing and tell your agent and doctors.
MOST. A patient with capacity may revoke by destroying or defacing it, by a signed and dated written revocation, or by saying so before a witness 18 or older who signs and dates a confirmation (SDCL 34-12H-9).
Comfort One. You, or anyone authorized to make treatment decisions for you, may revoke it at any time (34-12F-8).

Documents Signed In Another State

A living will is valid in South Dakota if it met the signing rules of the place where you lived at the time, the place you signed it, or chapter 34-12D (SDCL 34-12D-22). An out-of-state MOST is valid too (34-12H-6).

No South Dakota section expressly validates a health care power of attorney signed in another state. The financial act's recognition rule does not help, because chapter 59-12 excludes health care powers. If you move to South Dakota, re-signing your health care power of attorney under 59-7-2.1 removes the question.

After A Death

Every document on this page ends with your life. Your health care agent has no authority over your property, your funeral or your estate. The personal representative named in your will handles those through probate. Read the rest of a South Dakota plan for how the will, the financial power of attorney and these health care documents fit together, and the South Dakota probate guide for what happens after a death.

Frequently Asked Questions

Does a South Dakota advance directive need a notary or witnesses?

One or the other, not both. SDCL 59-7-2.1 says the signature on a durable power of attorney for health care shall be witnessed by two other adult individuals or by a notary public. SDCL 34-12D-2 says a living will declaration must be witnessed by two adults, or by a notary public who then notarizes it. The sample living will form in 34-12D-3 prints lines for two witnesses and a notary, but the statute accepts either method on its own.

What must a South Dakota living will say about feeding tubes?

SDCL 34-12D-2 says a declaration must state your preferences on the provision, withholding or withdrawal of artificial nutrition and hydration. If yours is silent on that question, the declaration still works for everything else, and the feeding-tube decision is governed by the South Dakota law that applies when there is no declaration at all. The sample form in 34-12D-3 has a separate initialed choice for it.

When does a South Dakota living will take effect?

Under SDCL 34-12D-5 a living will declaration becomes operative when the attending physician determines that you are in a terminal condition, that death is imminent, and that you can no longer communicate decisions about your medical care. All three must be true. Until then you make your own decisions.

Who makes medical decisions in South Dakota if I have no advance directive?

SDCL 34-12C-3 applies when there is no health care agent or guardian of the person, or neither is available. The order is your spouse if not legally separated, an adult child, a parent, an adult sibling, a grandparent or adult grandchild, an adult aunt, uncle, cousin, niece or nephew, and then a close friend. You can disqualify a family member in advance in a signed document or by a notation in your medical record made at your direction.

Does a guardian override my South Dakota health care power of attorney?

Yes. SDCL 59-7-11 says that if a court appoints a guardian of your person after you sign a health care power of attorney, that document ends at the time of the appointment. The guardian must still follow any provisions in it that state your wishes for medical and end-of-life care. You can use the health care power of attorney to nominate your guardian under 59-7-2.4.

Is there a South Dakota advance directive registry?

No. None of the South Dakota chapters on health care powers of attorney, living wills, family consent or MOST creates a statewide registry. The Department of Health keeps a Comfort One database, but it covers only the EMS do-not-resuscitate directive under chapter 34-12F. Give copies of your documents to your agent, your family and your doctors.

What is a MOST form in South Dakota?

A Medical Order for Scope of Treatment under SDCL chapter 34-12H. It is a medical order, not an advance directive, and it is only for a patient diagnosed with a terminal condition. The patient, or the authorized representative if the patient lacks capacity, signs it with a physician, physician assistant or certified nurse practitioner (34-12H-2, 34-12H-4). If it conflicts with an earlier directive, the provider follows the most recent instruction (34-12H-8).

Sources:

Title: SDCL 59-7-2.1, Principal, designation, healthcare. Publisher: South Dakota Legislature. Publication Date: Not listed. URL: https://sdlegislature.gov/Statutes/59-7-2.1
Title: SDCL 59-7-2.4, Nomination, health care, guardian, conservator. Publisher: South Dakota Legislature. Publication Date: Not listed. URL: https://sdlegislature.gov/Statutes/59-7-2.4
Title: SDCL 59-7-2.5, Health care decisions by agent. Publisher: South Dakota Legislature. Publication Date: Not listed. URL: https://sdlegislature.gov/Statutes/59-7-2.5
Title: SDCL 59-7-2.6, Physician's determination of principal's decisional capacity. Publisher: South Dakota Legislature. Publication Date: Not listed. URL: https://sdlegislature.gov/Statutes/59-7-2.6
Title: SDCL 59-7-2.7, Comfort care required, conditions for withdrawal of artificial nutrition or hydration. Publisher: South Dakota Legislature. Publication Date: Not listed. URL: https://sdlegislature.gov/Statutes/59-7-2.7
Title: SDCL 59-7-9, Acts pursuant to durable power of attorney, authority not affected by time lapse. Publisher: South Dakota Legislature. Publication Date: Not listed. URL: https://sdlegislature.gov/Statutes/59-7-9
Title: SDCL 59-7-11, Appointment of guardian terminates power of attorney. Publisher: South Dakota Legislature. Publication Date: Not listed. URL: https://sdlegislature.gov/Statutes/59-7-11
Title: SDCL 59-7-2, Termination where power of agent not coupled with an interest. Publisher: South Dakota Legislature. Publication Date: Not listed. URL: https://sdlegislature.gov/Statutes/59-7-2
Title: SDCL 59-12-2, Applicability. Publisher: South Dakota Legislature. Publication Date: Not listed. URL: https://sdlegislature.gov/Statutes/59-12-2
Title: SDCL 34-12D-1, Definition of terms. Publisher: South Dakota Legislature. Publication Date: Not listed. URL: https://sdlegislature.gov/Statutes/34-12D-1
Title: SDCL 34-12D-2, Declaration, requirements to execute, artificial nutrition and hydration. Publisher: South Dakota Legislature. Publication Date: Not listed. URL: https://sdlegislature.gov/Statutes/34-12D-2
Title: SDCL 34-12D-3, Declaration, sample form. Publisher: South Dakota Legislature. Publication Date: Not listed. URL: https://sdlegislature.gov/Statutes/34-12D-3
Title: SDCL 34-12D-4, Multiple documents, resolving conflicts, participation by attorney in fact. Publisher: South Dakota Legislature. Publication Date: Not listed. URL: https://sdlegislature.gov/Statutes/34-12D-4
Title: SDCL 34-12D-5, When declaration becomes operative. Publisher: South Dakota Legislature. Publication Date: Not listed. URL: https://sdlegislature.gov/Statutes/34-12D-5
Title: SDCL 34-12D-8, Revocation of declaration, medical record to contain revocation. Publisher: South Dakota Legislature. Publication Date: Not listed. URL: https://sdlegislature.gov/Statutes/34-12D-8
Title: SDCL 34-12D-10, Treatment of pregnant woman notwithstanding declaration. Publisher: South Dakota Legislature. Publication Date: Not listed. URL: https://sdlegislature.gov/Statutes/34-12D-10
Title: SDCL 34-12D-11, Withdrawal or withholding of life-sustaining treatment, responsibilities of health care provider. Publisher: South Dakota Legislature. Publication Date: Not listed. URL: https://sdlegislature.gov/Statutes/34-12D-11
Title: SDCL 34-12D-22, Validity of declaration, declarations executed prior to July 1, 1991. Publisher: South Dakota Legislature. Publication Date: Not listed. URL: https://sdlegislature.gov/Statutes/34-12D-22
Title: SL 2023 ch 115 (Senate Bill 180), An Act to address requirements for the execution of a living will. Publisher: South Dakota Legislative Research Council. Publication Date: 2023-03-23 (signed). URL: https://mylrc.sdlegislature.gov/api/Documents/250864.pdf
Title: SDCL 34-12C-1, Definition of terms. Publisher: South Dakota Legislature. Publication Date: Not listed. URL: https://sdlegislature.gov/Statutes/34-12C-1
Title: SDCL 34-12C-2, Conditions authorizing health care decision by another, determination by physician. Publisher: South Dakota Legislature. Publication Date: Not listed. URL: https://sdlegislature.gov/Statutes/34-12C-2
Title: SDCL 34-12C-3, Absence of power of attorney or appointed guardian, consent by others, disqualification, delegation of authority. Publisher: South Dakota Legislature. Publication Date: Not listed. URL: https://sdlegislature.gov/Statutes/34-12C-3
Title: SDCL 34-12C-4, Court-ordered health care, conditions. Publisher: South Dakota Legislature. Publication Date: Not listed. URL: https://sdlegislature.gov/Statutes/34-12C-4
Title: SDCL 34-12H-1, Definitions. Publisher: South Dakota Legislature. Publication Date: Not listed. URL: https://sdlegislature.gov/Statutes/34-12H-1
Title: SDCL 34-12H-2, Patient or representative may execute MOST. Publisher: South Dakota Legislature. Publication Date: Not listed. URL: https://sdlegislature.gov/Statutes/34-12H-2
Title: SDCL 34-12H-4, MOST form, contents. Publisher: South Dakota Legislature. Publication Date: Not listed. URL: https://sdlegislature.gov/Statutes/34-12H-4
Title: SDCL 34-12H-8, Conflict between patient's MOST and patient's other directives. Publisher: South Dakota Legislature. Publication Date: Not listed. URL: https://sdlegislature.gov/Statutes/34-12H-8
Title: SDCL 34-12H-9, Revocation of MOST. Publisher: South Dakota Legislature. Publication Date: Not listed. URL: https://sdlegislature.gov/Statutes/34-12H-9
Title: SDCL 34-12F-1, Definitions. Publisher: South Dakota Legislature. Publication Date: Not listed. URL: https://sdlegislature.gov/Statutes/34-12F-1
Title: SDCL 26-1-1, Age of minority, calculation of age. Publisher: South Dakota Legislature. Publication Date: Not listed. URL: https://sdlegislature.gov/Statutes/26-1-1
Title: Advance Directives and Medical Orders. Publisher: South Dakota Department of Health. Publication Date: Not listed. URL: https://doh.sd.gov/healthcare-professionals/advance-directives-and-medical-orders/

It is not legal advice.