South Dakota Declaration and Power of Attorney for Mental Health Treatment

Power of Attorney and Health Care – General – South Dakota

An “attending physician,” is the physician who has the primary responsibility for the mental illness treatment of a person.

An “attorney-in-fact,” is any person designated by a principal through a power of attorney to make decisions about mental illness treatment for the principal in accordance with a declaration for mental illness treatment.

A “declaration for mental illness treatment,” or a “declaration,” is any document declaring preferences or instructions regarding mental illness treatment.

A “power of attorney for mental illness treatment,” is any document that authorizes an attorney-in-fact to make decisions about mental illness treatment or to consent to mental illness treatment on behalf of its principal.

Being “incapable,” is when the condition of a person whose ability to receive and evaluate information effectively or to communicate decisions is impaired to such an extent that, in the opinion of the court or in the opinion of two physicians, one of whom is the treating psychiatrist, if any, the person currently lacks the capacity to make mental illness treatment decisions.

“Mental illness treatment,” is convulsive treatment, treatment of mental illness with psychotropic medication, and admission to and retention in a health care facility for not more than thirty days for care or treatment of mental illness.

Declaration 

Any adult of sound mind may make a declaration of preferences or instructions for mental illness treatment. The preferences or instructions may include consent to mental illness treatment. A declaration for mental illness treatment continues in effect for three years or until revoked, whichever is first. If a declaration for mental illness treatment has been invoked and is in effect on the date that the declaration is to expire, the declaration remains effective until there is a subsequent determination by the attending physician, treating psychiatrist, or the circuit court that the principal is capable of giving informed consent.

Attorney in Fact 

Any adult of sound mind may designate a competent adult to act as her/his attorney-in-fact to make decisions about mental illness treatment.  An alternative attorney-in-fact may also be designated.The authority of an attorney-in-fact and any alternative attorney-in-fact continues under the power of attorney for mental illness treatment for three years, until it is revoked by the principal, or until the attorney-in-fact withdraws, whichever is first.

If an attorney-in-fact is acting for the principal on the date the power of attorney is to expire, the power of attorney remains in effect until the principal is no longer incapable. An attorney-in-fact who has accepted the appointment may make decisions about mental illness treatment on behalf of the principal only when the principal is incapable. The decisions must be consistent with any desires the principal has expressed in the declaration for mental illness treatment.

None of the following may serve as attorney-in-fact: The attending physician or other mental illness treatment provider or an employee of the physician or provider if the physician, provider, or employee is unrelated to the principal by blood, marriage, or adoption;or An owner, operator, or employee of a health care facility in which the principal is a patient or resident if the owner, operator, or employee is unrelated to the principal by blood, marriage, or adoption.

An attorney-in-fact may not make mental illness treatment decisions unless the principal is incapable. An attorney-in-fact is not, as a result of acting in that capacity, personally liable for the cost of treatment provided to the principal.

Except as limited by the declaration or any federal law, an attorney-in-fact has the same right as the principal to receive information regarding the proposed mental illness treatment and to receive, review, and consent to disclosure of medical records relating to that treatment. The right of access does not waive any evidentiary privilege.

In exercising authority under the declaration, an attorney-in-fact shall act consistently with the desires of the principal as expressed in the declaration. If the principal’s desires are not expressed in the declaration and are not otherwise known by the attorney-in-fact, the attorney-in-fact shall act in what the attorney-in-fact in good faith believes to be the best interests of the principal.

An attorney-in-fact is not subject to criminal prosecution, civil liability, or professional disciplinary action for any action taken in good faith pursuant to a declaration for mental illness treatment.

An attorney-in-fact may withdraw by giving notice to the principal. If the principal is incapable, the attorney-in-fact may withdraw by giving notice to the attending physician or mental illness treatment provider. The attending physician or provider shall note the withdrawal in the principal’s medical record.

A person who has withdrawn under the provisions of this section may rescind the withdrawal by executing an acceptance after the date of the withdrawal. The acceptance shall be in the same form as provided by § 27A-16-18 for accepting an appointment as attorney-in-fact. A person who rescinds a withdrawal shall give notice to the principal if the principal is capable or to the principal’s attending physician or mental illness treatment provider if the principal is incapable.

Execution and Witnesses 

A declaration and power of attorney for mental illness treatment is effective only if it is signed by the principal and two competent adult witnesses. The witnesses shall attest that the principal is known to them, that the principal signed the declaration and power of attorney for mental illness treatment in their presence, and that the principal appears to be of sound mind and not under duress, fraud, or undue influence.

None of the following may serve as a witness to the signing of a declaration and power of attorney for mental illness treatment: The attending physician or mental illness treatment provider or a relative of the physician or provider; An owner or operator or a relative of an owner or operator of a health care facility in which the Principal is a patient or resident; or A person related to the principal by blood, marriage, or adoption.
Revocation 

A principal who is capable may revoke a declaration and power of attorney for mental illness treatment in whole or in part at any time. A revocation is effective when a capable principal communicates the revocation to the attending physician or other provider. The attending physician or other provider must note the revocation in the principal’s medical record.

Form 

A declaration and power of attorney for mental illness treatment must be in substantially the statutory form.

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Inside South Dakota Declaration and Power of Attorney for Mental Health Treatment