South Dakota Healthcare Power of Attorney for a Disabled Adult Turning 18

Why Medical Authority Disappears at 18

The day your child turns 18 in South Dakota, you lose the legal right to make their medical decisions, access their health records, or speak with their doctors about treatment. This happens automatically — no court order, no notification. The hospital's HIPAA policies kick in, and you're suddenly a third party.

For families of young adults with disabilities, this creates an immediate practical crisis. The next ER visit, medication change, or specialist appointment requires someone with legal authority to consent. If your young adult has the cognitive capacity to designate an agent, a healthcare power of attorney under SDCL 59-7-2.1 solves this without going to court.

Healthcare POA vs Living Will: Two Separate Documents

South Dakota does not use a single combined advance directive. The state maintains two distinct legal instruments, and families regularly confuse them:

Durable Power of Attorney for Healthcare (SDCL 59-7-2.1) — This designates a specific person (the agent) to make medical decisions when the young adult cannot make them independently. The agent can consent to treatment, refuse procedures, choose providers, access medical records, and make end-of-life decisions. This is the document most families with disabled young adults need.

Living Will (SDCL 34-12D) — This is a written instruction document that states the individual's preferences about life-sustaining treatment if they are terminally ill or in a persistent vegetative state. It doesn't appoint anyone to make decisions — it just records the individual's wishes. For transition-age young adults, this is less immediately relevant than the healthcare POA.

You can execute both, and the healthcare POA agent is generally expected to follow the living will's instructions when the specified conditions apply. But the healthcare POA is the document that gives a parent day-to-day medical decision-making authority.

Signing Requirements

The healthcare POA must meet specific execution requirements under South Dakota law:

• The young adult (principal) must sign the document. They must understand that they're choosing someone to make healthcare decisions for them. If they lack the cognitive capacity to understand this concept, the document is legally invalid and guardianship becomes the only path to medical authority.
• Two adult witnesses OR a notary public. South Dakota requires either two witnesses who are at least 18 years old, or notarization. You don't need both. The witnesses cannot be the designated agent.
• Activation depends on incapacity. The agent's authority applies when a physician determines in good faith that the principal lacks decisional capacity for the specific medical decision.

The document can be executed before the young adult's 18th birthday to take effect immediately when they reach the age of majority, or anytime after they turn 18.

What the Agent Can Do

Once the healthcare POA is in effect and a physician determines that the principal lacks the capacity to make a specific medical decision, the designated agent can:

• Consent to or refuse medical treatment — including surgery, psychiatric medication, therapy, and diagnostic procedures
• Choose healthcare providers — selecting doctors, hospitals, therapists, and residential care facilities
• Access protected health information — the healthcare POA serves as a HIPAA-compliant authorization, allowing the agent to review medical records, speak with providers, and receive test results
• Make end-of-life decisions — if the principal's living will doesn't address the specific situation, or if no living will exists

The healthcare POA only activates when a physician determines in good faith that the principal lacks the decisional capacity for the specific medical choice at hand. If the young adult can understand and communicate their treatment preferences, they make their own decisions — the agent steps in only when they cannot.

HIPAA Access Without the POA

Even without a healthcare POA, the young adult can sign standalone HIPAA authorization forms that allow specific providers to share medical information with designated family members. This covers information access but does not grant decision-making authority.

If your young adult can handle routine medical decisions but you need to stay informed about their care, a HIPAA release at each provider's office may be sufficient. The healthcare POA is for situations where someone needs to actually make medical choices.

When the Healthcare POA Won't Work

The healthcare POA requires the young adult to have enough cognitive capacity to understand what they're signing. For individuals with profound intellectual disabilities who cannot grasp the concept of delegating medical authority, this instrument is legally unavailable. In that situation, the family must petition the circuit court for guardianship of the person, which grants the appointed guardian authority over medical decisions without requiring the young adult's signature.

The South Dakota Adult Guardianship & Alternatives Guide includes a capacity assessment framework to help families determine whether their young adult can execute a healthcare POA or whether a court order is the only viable option — along with the specific filing steps, costs, and timelines for either path.

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