Power of Attorney and Health Care – General – South Dakota
An agency is terminated as to every person having notice thereof in all cases by: Expiration of its term; Extinction of its subject; Death of the agent; Renunciation by the agent; or Incapacity of the agent to act as such.
Termination of Agency (§ 59-7-2)
Unless the power of the agent is coupled with an interest in the subject of the agency, an agency is terminated as to every person having notice thereof by: Revocation by the principal; Death of the principal; or His incapacity to contract.
Continuation of Agency (§ 59-7-2.1)
If a principal designates another as his attorney in fact or agent by a written power of attorney which contains the words “This power of attorney shall not be affected by disability of the principal,” or “This power of attorney shall become effective upon the disability of the principal,” or similar words showing the intent of the principal that the authority conferred is exercisable notwithstanding his disability, the authority of the attorney in fact or agent is exercisable by him as provided in the power on behalf of the principal notwithstanding any later disability or incapacity of the principal or later uncertainty as to whether or not the principal is dead or alive. A power of attorney granted pursuant to this section may authorize the attorney-in-fact to consent to, to reject, or to withdraw consent for medical procedures, treatment or intervention.
Recording of Power of Attorney (§ 59-7-2.2)
A power of attorney may be recorded with a register of deeds specified in the power of attorney, and a certified copy thereof shall have the same force and effect as the signed original. It shall be effective for the purposes granted during the lifetime of the principal, unless revoked by a revocation recorded in the office of the register of deeds where the power of attorney was originally recorded.
Actions by Agent (§ 59-7-2.3)
All acts done by an attorney in fact or agent pursuant to a power during any period of disability or incompetence (or uncertainty as to whether the principal is dead or alive) have the same effect and inure to the benefit of and bind the principal or his heirs, devisees, administrators, executors and personal representatives, as if the principal were alive, competent and not disabled.
Nominaton of Guardian or Conservator (§ 59-7-2.4)
A principal may nominate, by a durable power of attorney, a guardian or conservator for consideration by the court should guardianship or conservatorship proceedings for the principal’s person or estate be later commenced.
Health Care Decisions by Agent (§ 59-7-2.5)
An attorney-in-fact or agent may make any health care decisions for the principal which the principal could make individually if he had decisional capacity. All such decisions are to be made in accordance with accepted medical practice. Whenever making any health care decision for the principal, an attorney-in-fact or agent must consider the recommendation(s) of the attending physician, the decision that the principal would have made if the principal then had decisional capacity, if known, and the decision that would be in the best interest of the principal.
Physician’s Determination of Capacity (§ 59-7-2.6)
An attorney-in-fact or agent may not make a health care decision in any situation in which the principal’s attending physician has determined in good faith that the principal has decisional capacity. If the physician makes that determination, then the physician must proceed as if there were no designation if the attorney-in-fact or agent is unavailable or refuses to make a health care decision.
Withdrawal of Artificial Nutrition or Hydration (§ 59-7-2.7)
An attorney-in-fact or agent may not authorize the withholding or withdrawal from the principal of comfort care and nutrition or hydration. Artificial nutrition or hydration may be withheld or withdrawn if: Artificial nutrition or hydration is not needed for comfort care or the relief of pain and the attending physician reasonably believes that the principal’s death will occur within approximately one week; Artificial nutrition or hydration cannot be physically assimilated by the principal; or The burden of providing artificial nutrition or hydration outweighs its benefit, provided that the determination of burden refers to the provision of artificial nutrition or hydration itself and not to the quality of the continued life of the principal; or There is clear and convincing evidence that artificial nutrition or hydration was refused by the person prior to loss of decisional capacity; or the power of attorney directs that artificial nutrition or hydration not be given or specifically authorizes an attorney-in-fact or agent to make that decision; or prior to the loss of decisional capacity there is clear and convincing evidence that the principal expressed the desire that artificial nutrition or hydration not be given. Even in the case of the exceptions listed above, artificial nutrition or hydration may not be withheld or withdrawn if it is needed for comfort or the relief of pain.
Death, Disability, Incompetence (§ 59-7-3)
Except in instances involving health care decisions, the death, disability, or incompetence of a principal does not revoke or terminate the agency of an attorney in fact, an agent, or any other person, who, without actual knowledge of the death, disability, or incompetence of the principal, acts in good faith under the power of attorney or agency.
Physician/Health Care Provider Reliance (§ 59-7-8)
A physician or other healthcare provider acting in reliance on a health care decision by an attorney-in-fact or agent whom the physician or healthcare provider believes in good faith is authorized to make a health care decision for the principal or a physician or other healthcare provider declining to act in reliance on a health care decision by an attorney-in-fact or agent whom the physician or healthcare provider believes in good faith is not authorized to make a health care decision for the principal is not subject to criminal prosecution, civil liability or professional disciplinary action on the ground that the attorney-in-fact or agent either had or did not have authority to make a health care decision or for disclosing to the attorney-in-fact or agent medical records or other information.
A physician or other healthcare provider who in good faith believes that the principal has or does not have decisional capacity is not subject to criminal prosecution, civil liability or professional disciplinary action for making that determination.
There is no statutorily prescribed form for a durable power of attorney for health care.
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