South Dakota Q and A

Ten commonly asked questions about PAD’s for South Dakota

Please note: the following 10 FAQs are designed to provide a quick and accessible guide to what your state’s Statutes say – or do not say – about PADs.  The FAQs do not attempt to provide a complete picture of the law in your state, nor can they take the place of legal advice.  The answers were accurate when written in October 2013.

1.  Can I write a legally-binding psychiatric advance directive (PAD)?

Yes.  Although South Dakota’s statutes do not provide specifically for PADs, Title 59, Chapter 7 of South Dakotas statutes allows you to appoint an agent to make decisions for you in the event that you are unable to make them for yourself.  In South Dakota, this person is known as an “Attorney in Fact” or “Agent” and the document naming the individual is known as a “Durable Power of Attorney for Health Care”.  There is no mandatory form.  However, it is highly recommended that you consult with a lawyer thoughout the process to ensure that your PAD is tailored specifically to meet your special needs and circumstances. You should also meet with your physician to discuss your PAD before or during the time you are creating the document.
2.  Can I write advance instructions regarding psychiatric medications and/or hospitalization?

Yes.  You may express any and all wishes you have about your mental health treatment, including refusal of mental health treatment, but they mus the form of instructions to your agent.

3.  Does anyone have to approve my advance instructions at the time I make them?

No.  However, your document must be either notarized by a notary puclic or signed in your presence by two competent adult witnesses. Neither witness may be the same person as your Attorney in Fact, or an employee of your health care provider.

4.  Can I appoint an agent to make mental health decisions for me if I become  incompetent?

Yes.  The agent is known as the “Attorney in Fact” under South Dakota law.  Your health care provider, or any of his/her employees, may not serve as your Attorney in Fact. You may also name a “successor agent” to act as your health care agent in the event that your primary health care agent is unavailable or unwilling to make a decision.

5.  If I become incompetent, can my agent make decisions for me about medications, and/or hospitalization?

Yes.  The general rule is that your agent can make any decision that you could have made if you were able to, including a decision to refuse treatment.  This rule is subject to limitations, however – see question 9 below.  Unless your Durable Power of Attorney for Health Care specifically denies or limits their ability to do so, your agent may consent to you being retained in a mental health care facility. However, after a period of thirty days and every ninety days thereafter, the facility must review your record and evaluate the need for continuing inpatient treatment. If further hospitalization is required and it is determined that you are still incapable of giving informed consent, your agent must again provide substituted informed consent on your behalf.

6.  Does my agent have to make decisions as he/she thinks I would make them (known as “substituted judgment”), or does he/she have to make them in my “best interests”?

When making a health care decision on your behalf your agent must consider the decision you would have made while you were competent and the decision that would be in your best interests. The recommendation of your attending physican must also be considered. All health care decisons made for you by your agent must be in “accordance with accepted medical standards”.

7.  Is there any rule that says that I can only make advanced instructions, only appoint an agent, or that I must do both?

Yes. As described above, the South Dakota statutes do not allow consumers to make instructions alone, with the important exception of decisions about life-sustaining treatment. Consumers must appoint an agent in order to engage in advance decision making about their mental health treatment.

8.  Before following my PAD, would my mental health care providers need a court to determine I am not competent to make a certain decision?

No.  All that is required is that your attending physician determines that you lack decisional capacity to give informed consent to health care. The physician must make this determination in writing, sign it and record it in your medical record.

9.  Does the statute say anything about when my mental health providers may decline to follow my PAD?

Yes.  The statute only requires your physicians to follow your PAD to the extent that is “consistent with reasonable medical practice, the availability of treatments requested and applicable law”.  If you were considered a danger to yourself or others, the law would allow your physicians to intervene and “override” your PAD in the process.

10.  How long does my PAD remain valid?

Your Durable Power of Attorney for Health Care remains valid until revoked by you.  You may revoke or amend it at any time you remain competent.