South Dakota Free Advance Directive Form vs. Complete Kit: What the State Form Leaves Out

If you're comparing the free South Dakota advance directive form from the Department of Health to a comprehensive kit, here's the direct answer: the free form is technically valid, but it ships with zero execution guidance — no witness eligibility rules, no Comfort One coordination, no explanation of how EMS handles your Living Will, and no Medicaid estate recovery context. If you understand South Dakota healthcare law well enough to execute the form correctly on your own, the free form works. If you don't, and most people don't, the gaps create real compliance risks that can invalidate your directive or leave it unenforceable in an emergency.

What the Free Form Includes vs. What the Kit Includes

The Five Gaps That Matter Most

1. No DPOA-HC Form or Guidance

South Dakota's two-document framework requires both a Living Will Declaration (SDCL 34-12D) and a Durable Power of Attorney for Health Care (SDCL 59-7-2.1). The state provides a standardized Living Will form. It does not provide a standard DPOA-HC form. If you only complete the Living Will, you've documented your treatment preferences but haven't designated anyone to make decisions when you can't speak for yourself.

The free form doesn't tell you this. It doesn't explain the difference between the two documents, their different execution requirements, or how to find and execute a valid DPOA-HC that South Dakota hospitals will accept.

2. No Witness Eligibility Rules

Both documents require witnesses, but the eligibility rules differ. Witnesses cannot be the healthcare agent, a healthcare provider, a relative by blood or marriage, a creditor, or someone entitled to a portion of the estate. Getting this wrong doesn't just create a technicality — it can invalidate the entire document.

The free form includes a witness signature line. It does not list who is disqualified from signing.

3. No Comfort One or MOST Coordination

This is where the free form creates the most dangerous gap. South Dakota EMS first responders are legally required to perform CPR and full resuscitation unless they see a Comfort One form (SDCL 34-12F) or state-issued bracelet. Your Living Will has no legal authority in an out-of-hospital emergency. If you complete only the free Living Will form and have a cardiac arrest at home, EMS will perform full resuscitation regardless of what your Living Will says.

The coordination between legal planning documents (DPOA-HC and Living Will) and clinical medical orders (Comfort One and MOST) is the most important thing to understand in South Dakota advance directive planning, and the free form doesn't mention it at all.

4. No Medicaid Estate Recovery Context

South Dakota is a "probate-only" Medicaid recovery state under SDCL 28-6-23, which sounds protective until you encounter the joint tenancy trap under SDCL 43-46-1. When a Medicaid recipient with joint tenancy interest dies, the surviving joint owner can face a lien against the property — a provision that catches most farming families who hold land in joint tenancy as a matter of course.

This isn't an advance directive execution requirement, but it's information anyone doing end-of-life planning in South Dakota needs before making decisions about asset titling and long-term care.

5. No Default Surrogate Hierarchy

If you become incapacitated without a DPOA-HC, South Dakota law assigns medical decision-making authority through a statutory priority list (SDCL 34-12C-3). When two people at the same priority level disagree — two adult children, for example — the deadlock provision under SDCL 34-12C-4 forces circuit court intervention.

The free form doesn't explain this hierarchy, how deadlock works, or how to preemptively prevent a specific family member from ending up in the decision-making chain.

Who This Is For

• Anyone who downloaded the free form and realized it doesn't explain how to actually complete the process
• People who want to understand what they're signing before they sign it
• Families who need Comfort One and MOST coordination explained alongside the legal documents
• Rural residents who need the remote electronic witnessing option under SDCL 18-8-4
• Anyone who wants a complete system, not just a blank form

Who This Is NOT For

• People who already have an attorney handling their advance directive
• Anyone who only needs the bare statutory Living Will form and understands the execution requirements from prior experience

The Real Question

The free form is a blank document. A kit is an execution system. If you're comfortable researching South Dakota witness eligibility rules, Comfort One coordination, DPOA-HC selection, and Medicaid recovery implications on your own, the free form saves you money. If you want all of that researched, organized, and presented as a step-by-step process with printable reference materials, the South Dakota Advance Directive & Living Will Kit costs and covers everything the free form leaves out.

Frequently Asked Questions

Is the free South Dakota advance directive form legally valid?

Yes. The Living Will Declaration form from the Department of Health meets the statutory requirements under SDCL 34-12D — if you execute it correctly. The form itself is valid; the problem is that it doesn't tell you how to execute it correctly (witness eligibility, distribution, Comfort One coordination).

Can I use the free form for my DPOA-HC too?

No. South Dakota does not provide a standardized DPOA-HC form. The free download covers only the Living Will Declaration. You need a separate DPOA-HC under SDCL 59-7-2.1, which has different execution requirements including mandatory notarization.

What happens if I only complete the Living Will without a DPOA-HC?

You've documented your treatment preferences (end-of-life interventions, artificial nutrition, comfort care) but haven't designated anyone to make other healthcare decisions. If you're incapacitated and a decision falls outside what your Living Will covers, South Dakota's default surrogate hierarchy takes over — which may not put the person you'd choose in charge.

Is the free form enough if I don't have complicated family dynamics?

It depends on what you mean by "enough." If you want a valid Living Will and are confident in your ability to find eligible witnesses, understand the difference from a DPOA-HC, and know that your Living Will won't help in an out-of-hospital emergency without a Comfort One order — the free form works. Most people don't know these things, which is why the form alone creates gaps.

Do national template platforms like LegalZoom cover these South Dakota-specific issues?

Most don't. National platforms generate valid advance directive forms, but they typically don't address Comfort One coordination, the MOST form under SDCL 34-12H, the joint tenancy trap, remote electronic witnessing, or rural-specific execution challenges. They charge $39–$49/month in recurring subscription fees for templates that are often less South Dakota-specific than the free state form.

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