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 November 2006.

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

Yes.  South Dakota’s “Mental Illness Treatment Decisions” law 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” and the document naming the attorney in fact is known as a “Power of Attorney for Mental Illness Treatment”.  There is no mandatory form.  However, a recommended standard form is available here .

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.  You may consent to being retained in a mental health care facility, but only for a period of thirty days or fewer.  

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

No.  However, your document must be signed by two competent adults who personally know you.  Neither 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.

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.  

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”?   

Your Attorney in Fact must exercise substituted judgment as far as possible.  If he/she does not know what you would choose to do, he/she must act in your best interests.

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

No.  You may do one, the other, or both.

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 two physicians, one of whom must be your treating psychiatrist, determine that your ability to receive and process information is so impaired that you lack the capacity to make decisions about your own mental health care. The physicians must record this decision in your medical notes.

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 Power of Attorney remains valid for three years, or until revoked by you.  You may revoke it at any time you remain competent.