South Dakota Living Will: Requirements, Limits, and What EMS Won't Honor

A South Dakota living will tells your medical providers to withhold or withdraw life-sustaining treatment under specific circumstances. What it won't do is stop paramedics from performing CPR in your living room — and that gap catches families off guard at the worst possible moment.

South Dakota's Living Will Declaration is governed by SDCL 34-12D-2, and it operates very differently from the Durable Power of Attorney for Health Care. Understanding what each document does — and doesn't do — prevents the situation where your clearly documented wishes get ignored in a crisis.

What a South Dakota Living Will Actually Controls

The living will is a direct instruction from you to your attending physician. It only activates when three conditions are met simultaneously:

1. Your attending physician certifies you are terminally ill (including permanent unconsciousness)
2. Death is imminent
3. You can no longer participate in treatment decisions

Until all three conditions exist, the living will has no legal force. This means it does nothing during a temporary medical emergency, a recoverable surgery complication, or early-stage cognitive decline.

When it does activate, the living will directs your medical team to withhold or withdraw life-prolonging interventions — ventilators, dialysis, cardiac drugs — and shift to comfort-focused care.

Execution Requirements Under SDCL 34-12D

South Dakota provides a statutory model form within SDCL 34-12D-3, which is one advantage over the healthcare POA (which has no official state form). To create a valid living will:

• Sign the declaration yourself, or have another adult sign at your explicit direction while physically or electronically present
• Two adult witnesses must be present (physical or electronic presence via synchronous video under SDCL 18-8)
• Notarization is not required by statute, but the State Bar and most hospital templates include a notary line for added enforceability

The witness exclusion rules are identical to the healthcare POA: witnesses cannot be your healthcare agent, your medical provider or their staff, a blood/marriage/adoption relative, an heir, or a creditor.

The Comfort One Gap: Why Your Living Will Doesn't Cover Emergencies

Here is the critical distinction most South Dakotans miss: EMS personnel are legally required to perform full resuscitation efforts unless they see a valid, physician-signed clinical order. Your living will is not that order.

South Dakota uses two clinical tools that EMS will honor:

Comfort One is the state's out-of-hospital DNR program, managed by the Department of Health. A physician, PA, or nurse practitioner must sign the standardized green Comfort One form. Once registered, you receive a stainless steel bracelet. When EMS sees the form or bracelet, they withhold CPR, chest compressions, mechanical ventilation, intubation, and resuscitative drugs — but they still provide comfort measures like airway opening, suction, oxygen, bleeding control, and pain medication.

MOST (Medical Orders for Scope of Treatment) is South Dakota's version of the national POLST paradigm. It covers broader treatment preferences beyond just resuscitation: level of medical intervention (comfort only vs. limited vs. full), and artificial nutrition decisions. MOST is reserved for patients with a terminal diagnosis and less than one year life expectancy.

Neither of these is an advance directive. Both are active medical orders that require a clinician's signature. A comprehensive end-of-life plan needs the living will for hospital settings plus Comfort One or MOST for emergency and out-of-hospital situations.

Revoking a South Dakota Living Will

Under SDCL 34-12D-4, you can revoke your living will at any time, in any manner, regardless of your mental state. Revocation works through:

• A written revocation document
• Physically destroying the original
• An oral statement expressing intent to revoke

The revocation only takes legal effect once it's communicated to your attending healthcare provider. Until the provider knows, the original document remains operative.

Living Will vs. Healthcare POA: Which Do You Need?

The short answer is both. They serve different functions:

The living will handles the scenarios you can anticipate. The healthcare POA covers everything else — including situations you never imagined — by putting a trusted person in charge.

Getting Both Documents Right

The South Dakota Advance Directive & Living Will Kit includes both documents with South Dakota-specific execution checklists, a witness eligibility worksheet, Comfort One and MOST coordination guidance, and a document distribution tracker to ensure every provider has your paperwork on file.

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