Mutual Wills or Last Will and Testaments for Unmarried Persons living together with Minor Children
Note: This summary is not intended to be an all inclusive
discussion of the law of wills in South Carolina, but does contain basic
and other provisions. A discussion of hand written wills is not included.
STATUTORY REFERENCE
ALL REFERENCES? ARE TO THE SOUTH CAROLINA CODE
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Life sustaining procedures may be withheld or withdrawn upon the direction?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, then 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 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 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, not directly financially responsible for the person's medical? care, 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 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;
the revocation was communicated to the physician within a reasonable? time;
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 revocation becomes effective only upon communication to the attending? physician by the designee.
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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