The following answers are based upon South Dakota law as of January 2005. The laws in other states may be different. Laws are subject to change, so please ask your attorney for answers to specific questions.
1. After a patient is connected to life support systems, it is legally difficult to withdraw him or her from the life support systems.
- SD Answer: False.
- With durable power of attorney and/or the family wishes, in consolation with the medical professional, life support systems can be removed. It would be ideal if all are in agreement, but the durable power of attorney can have life support systems withdrawn. If no durable power of attorney has been appointed, the family would work with the medical professional to make the decision. If there are no family members, it is left up to medical professionals to make this determination. It is quite important that the patient’s wishes are well known by the person appointed as power of attorney, the family and the doctor before the situation arises.
2. Without a living will, the doctors and hospital must put and keep a terminally and incurably ill patient on life support systems, regardless of the cost.
- SD Answer: False.
- If the patient is competent, the patient can refuse medical treatment. If the patient is not competent, life support systems may be withheld or withdrawn if two doctors agree that the patient is terminally and incurably ill or in a persistent vegetative state, and they have permission of a guardian, health care agent, spouse, or the majority of the immediate family (in that order of priority).
3. Emergency Medical Services (EMS) must be given a copy of your living will if they are called to resuscitate you.
- SD Answer: False.
- EMS must resuscitate a patient, regardless of whether s/he has a living will, unless a doctor has entered a Do Not Resuscitate (DNR) order for the patient.
4. If you have a living will, you should also have a Do Not Resuscitate (DNR) order.
- SD Answer: False.
- A Do Not Resuscitate (DNR) order is entered by a doctor for patients who are dying or who are in a persistent vegetative state. If a healthy person has a DNR order, it may prevent him from receiving medical care needed to save his life.
5. You revoke your living will by tearing it up.
- SD Answer: False.
- You revoke your living will by telling your doctor that you have revoked it. You or your agent may tell your doctor that you have revoked your living will. Tearing it up may work only if you have not discussed it or given a copy to your doctor. If revoking your will, you should ask for the return of all copies. If you want to change provisions in your living will, you must be competent, the living will must be in writing and witnessed by two adults. Information on writing a South Dakota living will is available online at http://www.medlawplus.com/library/legal/states/southdakota.tpl?page=lw
6. Your health care agent has the right to make all health care decisions on your behalf under a Health Care Power of Attorney and can make decisions over your objections.
- SD Answer: False.
- If you are competent, your health care agent has no authority under your health care durable power of attorney. Before your health care agent has authority to make decisions on your behalf, your doctor must state in writing that you are unable to make, understand, or communicate your medical decisions.
7. More often than not, it is one or more family members who prevent a patient’s living will from being honored by the doctor and medical provider.
- SD Answer: True.
- A doctor is likely to listen to the wishes of the family. If one or more family members insist that life support systems be continued, the doctor is likely to continue life support until the family agrees to terminate it. You should discuss this issue with your family to ensure that your end-of-life choices are honored.
8. A living will from another state is not valid in this state.
- SD Answer: False.
- A living will from another state is valid in South Dakota as a common law document. If it does not conform to South Dakota law, a medical provider may lose the statutory defense in honoring it. Thus, some medical providers may be reluctant to honor a living will that does not conform to South Dakota law.
9. A hospital or nursing home can insist that someone being admitted must sign a living will.
- SD Answer: False.
- A medical facility may not require a patient to sign a living will before being admitted. To do so would violate federal law for most medical facilities.
10. The law is more concerned about protecting doctors than it is about honoring a patient’s wishes.
- SD Answer: False.
- While the law is designed to protect medical providers who honor a living will, it also protects the patient by ensuring that a living will is not honored prematurely by unqualified people. Two doctors are required to make the diagnosis that the patient is either terminally and incurably ill, or in a persistent vegetative state.
11. The Power of Attorney for health care must always be a family member if one is available.
- SD Answer: False.
- You may appoint any competent person who is at least 18 years old and who is not providing paid health care to you.
12. The Power of Attorney for health care may be shared by more than one family member.
- SD Answer: True.
- It is permissible to name more than one family member to hold the power of attorney for health care. Also, if your health care agent dies or becomes sick or incapacitated, or if he or she simply refuses to act, your health care power of attorney will have no legal effect. To avoid this problem, you may name one or more substitute health care agents. Your substitute health care agents will serve in the order you have listed them in your health care power of attorney.
13. An attorney must be used to draw up a legal living will.
- SD Answer: False.
- There is generally no cost for a legal will; South Dakota, as most states, offers a form or suggested format to use and indicates procedures for validating it. An attorney is not needed to make it a valid living will.
- Return to the Quiz for Health Care Advance Directives
- See our Advance Directives Case Studies for more information about Health Care Advance Directives, including specific details for residents of Idaho, Iowa, Kentucky, North Dakota, and South Dakota.
Credits
Adapted for use in the Legally Secure Your Financial Future: Organize, Communicate, Prepare program.
Content Development by:
Elizabeth E. Gorham, PHD, AFC,
Associate Professor & Extension Family Resource Management Specialist, South Dakota State University.
With assistance from:
- South Dakota State University College of Nursing,
- South Dakota State Bar Association – Young Attorneys.
This information is provided as a public service and is designed to acquaint you with certain legal issues and concerns. It is not intended to be a substitute for legal advice, nor does it tell you everything you may need to know about this subject. Future changes in the law cannot be predicted, and statements in these materials are based solely on the laws in force on the date of release noted on this page.
This document is for non-profit educational purposes only. This document may not be used by a profit-making company or organization. When used by a non-profit organization, appropriate credit must be given to the Cooperative Extension Legally Secure Your Financial Future: Organize, Communicate, Prepare education program. Materials for this program were developed by a team from six land-grant universities. The program is included in the program toolkit of the Cooperative Extension Financial Security in Later Life national initiative. For more information go to: http://www.csrees.usda.gov/fsll.