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 Dakota, but does
contain basic and other provisions. A discussion of hand written
wills is not included.
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, 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, 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.
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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
