How to Complete a South Dakota Advance Directive Without an Attorney

You don't need an attorney to complete a legally valid advance directive in South Dakota. The state doesn't require legal counsel for either the Living Will Declaration (SDCL 34-12D) or the Durable Power of Attorney for Health Care (SDCL 59-7-2.1). What you do need is a clear understanding of the execution requirements — witness eligibility, notarization rules, document differences, and Comfort One coordination — because the free state forms don't explain any of this, and getting a step wrong can invalidate the entire document.

Here's the complete process from start to finish.

Step 1: Understand You Need Two Documents, Not One

South Dakota uses a two-document advance directive framework:

Living Will Declaration (SDCL 34-12D) — states your preferences for end-of-life treatment: whether you want life-sustaining interventions, artificial nutrition and hydration, and comfort care. It only takes effect when you have a terminal condition or are permanently unconscious.

Durable Power of Attorney for Health Care (SDCL 59-7-2.1) — designates a healthcare agent to make medical decisions on your behalf whenever you can't make them yourself, regardless of whether your condition is terminal.

Most people think "advance directive" means one form. In South Dakota, it means both. The Living Will covers your treatment preferences. The DPOA-HC covers who makes decisions when you can't. Completing only one leaves a critical gap.

Step 2: Choose Your Healthcare Agent

Your DPOA-HC designates a healthcare agent (also called a healthcare proxy). This person must be:

• At least 18 years old
• Someone you trust to follow your wishes even under family pressure
• Available — if they live across the country, consider whether they can make time-sensitive decisions by phone or whether a local successor agent makes more sense

Name at least one successor agent in case your primary agent is unavailable, unwilling, or has died.

For farm and ranch families: Consider who can realistically manage healthcare decisions while the operation continues. Healthcare authority and financial authority are separate legal instruments, but they need to be coordinated — especially during planting, harvest, or calving season when decisions can't wait.

Step 3: Determine Witness Eligibility

This is where most DIY attempts go wrong. South Dakota requires witnesses for both documents, and the disqualification rules are specific:

A witness cannot be:

• Your designated healthcare agent
• Your healthcare provider or an employee of your healthcare provider
• Related to you by blood, marriage, or adoption
• Entitled to any portion of your estate (heirs, beneficiaries)
• A creditor
• Anyone with a financial claim against your estate

In small rural communities, these disqualifications can eliminate most of the people you know. South Dakota allows remote electronic witnessing under SDCL 18-8-4 if finding local eligible witnesses isn't practical.

Step 4: Execute the Documents Correctly

The two documents have different execution requirements:

Living Will Declaration:

• Sign in the presence of two eligible witnesses
• Witnesses sign acknowledging they observed your signature
• Notarization is not required but is recommended

DPOA-HC:

• Sign in the presence of two eligible witnesses
• Must be notarized — this is a hard requirement under SDCL 59-7-2.1
• The notary cannot also serve as a witness

Complete both documents in the same session if possible, with the same witnesses (assuming they're eligible for both) and the notary present.

Step 5: Address Comfort One and MOST

This step is invisible on the free state form, and it's the most important thing most people miss.

Your Living Will has no legal authority in an out-of-hospital emergency. South Dakota EMS first responders are legally required to perform full resuscitation — CPR, defibrillation, intubation — unless they see a Comfort One form (SDCL 34-12F) or state-issued bracelet. If you have a cardiac arrest at home with only a Living Will on file, EMS will perform full resuscitation regardless of your documented preferences.

If your treatment preferences include limiting resuscitation efforts, you need to discuss Comfort One and/or MOST (Medical Orders for Scope of Treatment, SDCL 34-12H) with your physician. These are clinical medical orders signed by a doctor, not legal documents — but they need to align with what your Living Will and DPOA-HC say.

Step 6: Distribute Copies

A valid advance directive that nobody can find in an emergency is useless. Distribute copies to:

• Your healthcare agent and successor agents
• Your primary care physician
• The hospital system you'd most likely be taken to (Avera Health, Monument Health, Sanford Health)
• Your nursing facility if applicable
• Your attorney if you have one (for their file, not because they need to review it)

Do not put the original in a safe deposit box. Your healthcare agent may not be able to access it when it's needed. Keep the original in a known, accessible location — a clearly labeled folder at home — and tell your agent where it is.

Step 7: Understand How to Revoke or Update

South Dakota provides three statutory revocation methods under SDCL 34-12D-18:

1. Written revocation — a signed, dated document stating you revoke the directive
2. Physical destruction — tearing, burning, or otherwise destroying the original
3. Oral revocation — verbally telling your attending physician you revoke the directive (the physician must note it in your medical record)

Update your directive when any of the 5 Ds occur: Death of your agent or spouse, Divorce, new Diagnosis, cognitive Decline, or every Decade even if nothing has changed.

Common Mistakes to Avoid

Using only the free state Living Will form. The free form from the Department of Health covers only the Living Will — not the DPOA-HC. Completing just this form leaves you without a designated healthcare agent.

Choosing ineligible witnesses. Having a family member or healthcare provider witness your document can invalidate it. Check every disqualification before you sign.

Assuming your Living Will works in emergencies. It doesn't for EMS. You need a Comfort One form or MOST for out-of-hospital situations.

Not distributing copies. Completing the documents and filing them away means nobody can act on them when they're needed.

Confusing the notarization requirements. The DPOA-HC must be notarized. The Living Will doesn't have to be. Mixing up which is which — or skipping notarization on the DPOA-HC — creates a validity problem.

Who This Is For

• Adults completing advance directives on their own without attorney assistance
• Adult children helping aging parents complete their documents
• Anyone on a fixed income who needs legally valid directives without paying attorney fees
• Rural residents who need to know about remote electronic witnessing and Comfort One coordination

Who This Is NOT For

• Anyone with contested family dynamics that may require court intervention
• People who need the documents drafted by an attorney for coordination with a complex estate plan
• Anyone who already has valid, current advance directives on file

Frequently Asked Questions

How long does it take to complete a South Dakota advance directive without an attorney?

The actual execution — signing, witnessing, notarizing — takes under an hour. The thinking and planning that comes before (choosing an agent, understanding your options, having conversations with your agent about your values) can take a few days to a few weeks. Don't rush the planning to speed up the signing.

Where do I find a notary in rural South Dakota?

Banks, credit unions, and county courthouses typically have notaries available. Some UPS stores and real estate offices also offer notary services. If you can't find one locally, South Dakota allows remote online notarization.

What if I make a mistake on the form?

Start over with a clean copy. Don't cross out and initial corrections on advance directive documents — a contested form with corrections is harder to defend than a clean one. Keep the originals of the new documents and destroy the old ones.

Can I complete my advance directive online?

You can research, plan, and prepare online, but the signing, witnessing, and notarization must follow the statutory requirements — either in person or through South Dakota's electronic witnessing and remote notarization provisions. There's no fully online execution path.

Is there a South Dakota-specific kit that walks through the entire process?

The South Dakota Advance Directive & Living Will Kit covers every step — DPOA-HC and Living Will execution, witness eligibility, Comfort One and MOST coordination, Medicaid recovery context, farm succession considerations, and document distribution — for . It's designed for exactly this situation: completing the process yourself, correctly, without an attorney.

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