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Health Care Consent

Every person has the right to make their own health care decisions, but there might come a time when you or a family member is not capable of making those decisions. Durable powers of attorney for health care and living wills can help plan ahead for these times. In the absence of these tools, South Dakota law authorizes others to make health care decisions for those unable to make their own.

By law a person is incapable of giving informed consent if:

  • A guardian has been appointed for the person;
  • The court has determined the person to be legally incompetent;
  • It has been determined in good faith by the person's attending physician.

If the attending physician determines a person incapable of giving informed consent, that determination remains effective until decided otherwise by a physician or the state. In the absence of a power of attorney or appointed guardian, a health care decision may be made by the incapacitated person's family.

South Dakota law has established an order as to who will make those decisions. The person's spouse is given the initial right, followed by, an adult child, a parent, an adult sibling, a grandparent or adult grandchild, an adult aunt or uncle, or an adult niece or nephew, respectively.

A person, before being determined incompetent, can disqualify any member of his family from making health care decisions for him. This disqualification must be made in a signed document, or made by notation in a person's medical record.

Persons authorized to make health care decisions must follow any expressed wishes of the incapacitated person. They must also act in good faith and cannot arbitrarily refuse consent. They are also required to consider the recommendation of the attending physician.

When no family members are available or family members do not agree on the decision to be made, the state can make the health care decision. They may also determine who is authorized to make the decision or appoint its own representative to make the decision.

Health care consent procedures can be avoided by preparing a durable power of attorney for health care. This appoints someone in advance to make these decisions.

Further details regarding living wills and durable powers of attorney for health care are explained in the estate planning section of this web site.