What Is a Living Will in South Carolina?

 What Is a Living Will in South Carolina?

A living will is a written statement of your wishes for medical care in situations where you can no longer communicate those wishes yourself. It’s one piece of a larger category of documents known as advance directives, and it exists specifically so that your doctors and family aren’t left guessing about what you would have wanted.

The Legal Definition

Under South Carolina law, this document is officially known as a Declaration of a Desire for a Natural Death. The statute permits a person to direct that life-sustaining procedures be withheld or withdrawn when the person has a terminal condition or is permanently unconscious, and the statutory requirements for implementation are satisfied. The declaration concerns procedures that would serve only to prolong the dying process. The term ‘living will’ commonly refers to the Declaration of a Desire for a Natural Death recognized under South Carolina law.

How It Differs from Other End-of-Life Documents

A living will is often confused with a healthcare power of attorney or a DNR order, but each serves a different function. A living will states your preferences directly, but its statutory effect is limited to the circumstances and treatment decisions addressed by South Carolina’s Death with Dignity Act. A healthcare power of attorney appoints a person to make decisions on your behalf. A do-not-resuscitate (DNR) order is a medical order directing clinicians not to attempt cardiopulmonary resuscitation (CPR) if cardiac or respiratory arrest occurs. The form, availability, and use of a DNR order may depend on the patient’s care setting and the applicable medical protocols. We’ll cover each of these comparisons in more detail below.

How Does a Living Will Work?

A living will doesn’t change anything about your day-to-day medical care while you’re able to make your own decisions. It may be given effect only when the statutory requirements are met. Although South Carolina law generally recognizes a valid declaration, a physician or health care facility that elects not to participate must make reasonable efforts to locate a willing physician or facility and arrange a transfer.

When Your Living Will Takes Effect

A South Carolina declaration may be given effect only after two physicians who have personally examined you, including your attending physician, certify that you have a terminal condition or are permanently unconscious, and the required six-hour period of active treatment following the diagnosis has occurred. The declaration must also appear properly executed and must not have been revoked. A terminal condition or permanent unconsciousness, as defined by South Carolina law, may satisfy the medical-condition requirement. A diagnosis of permanent unconsciousness generally cannot be made until at least 90 consecutive days of unconsciousness, unless specific medical findings allow the diagnosis to be made earlier with a high degree of medical certainty. While you are able to make and communicate your own health care decisions, you generally remain responsible for those decisions. Your declaration is intended to address circumstances in which you cannot provide directions and the statutory conditions for its use have been met. You remain in full control of your own care.

How Doctors and Healthcare Providers Use Your Living Will

Once the statutory conditions are met, the attending physician may implement a valid declaration as to the withholding or withdrawal of life-sustaining procedures within its terms and within South Carolina law. South Carolina law provides protections for good-faith reliance on a declaration that appears properly executed and has not been revoked. A provider or facility that chooses not to participate in withholding or withdrawing treatment must make reasonable efforts to locate a willing provider or facility and transfer the patient. Providing copies to your physician, health care agent, and trusted family members can improve the likelihood that the declaration is available when care decisions arise. You may also wish to ask your health care provider how to include it in your medical record.

What Medical Decisions Can You Include in a Living Will?

A South Carolina living will must substantially follow the statutory form, although the form allows you to make specific choices about artificial nutrition and hydration.

Life-Sustaining Treatment Choices

This is often the core of a living will. In a South Carolina declaration, you may direct that qualifying life-sustaining procedures be withheld or withdrawn if you have a terminal condition or are permanently unconscious and the statutory requirements are met. Because CPR decisions are commonly addressed through a separate medical order, ask your physician whether a DNR order is appropriate for your circumstances.

Artificial Nutrition and Hydration

South Carolina’s statutory form requires you to initial separate choices regarding nutrition and hydration provided through medically or surgically implanted tubes: one choice for a terminal condition and another for permanent unconsciousness. If you do not initial a choice concerning nutrition and hydration, South Carolina law provides that nutrition and hydration necessary for comfort care or pain relief will be provided. Consider reviewing these choices carefully with qualified legal and medical professionals.

Comfort Care and Pain Management

Even when qualifying life-sustaining procedures are withheld or withdrawn, medication and other treatment for comfort care or pain relief are not treated as life-sustaining procedures under South Carolina law. The care available in a particular situation remains subject to clinical judgment, applicable standards of care, and the patient’s medical condition.

Living Will vs. Other Important Documents

Because several documents cover related ground, it helps to see them side by side.

Living Will vs. Healthcare Power of Attorney

A living will provides written directions for the limited circumstances covered by South Carolina’s Death With Dignity Act. A South Carolina health care power of attorney appoints an agent to make health care decisions within the authority granted by the document and applicable law if you are unable to make decisions for yourself. It may address health care matters not covered by a declaration. Some people choose to execute both documents because they serve different purposes. An attorney can help determine whether either or both documents fit an individual’s circumstances and goals.

Living Will vs. Advance Directive

“Advance directive” is a broader umbrella term that includes both a living will and a healthcare power of attorney, along with any other written instructions about your future medical care. A living will is one specific type of advance directive.

Living Will vs. DNR Order

A DNR order is a medical order directing clinicians not to attempt CPR if cardiac or respiratory arrest occurs. Its use and implementation may vary by care setting and applicable medical protocols. A living will is an advance directive executed by the individual, while a DNR is a medical order addressing whether clinicians should attempt CPR if cardiac or respiratory arrest occurs.

Why You Need a Living Will in South Carolina

What Happens Without a Living Will

Without a living will, your family and doctors may be left without clear guidance if you become incapacitated. If an adult patient is unable to consent, South Carolina’s Adult Health Care Consent Act establishes a priority list of people who may make health care decisions, beginning with a court-appointed guardian, then an attorney-in-fact appointed under a durable power of attorney and acting within the scope of that authority, followed by a spouse and other relatives in statutory order. Disputes among persons of equal priority may be presented to probate court. The absence of written instructions may leave decision-makers with less direct guidance about the patient’s wishes and can contribute to uncertainty or disagreement in some families. Family members sometimes disagree about the right course of treatment, which can add stress during an already difficult time.

How a Living Will Protects Your Autonomy

A valid declaration can provide legally significant written direction about life-sustaining procedures in the limited circumstances covered by South Carolina’s Death with Dignity Act. Rather than leaving loved ones to guess, or to carry the emotional weight of deciding on your behalf, your written wishes provide clear direction. A declaration may give family members and health care professionals clearer evidence of your preferences if the statutory conditions for its implementation arise.

Getting Started With Your South Carolina Living Will

Basic Requirements for a Valid Living Will

To qualify under South Carolina’s Death With Dignity Act, a declaration must substantially follow the statutory form and be dated and signed in the presence of an officer authorized to administer oaths and two qualified witnesses, one of whom may be that officer. The witness affidavit must meet statutory requirements, and additional requirements apply when the declarant is a hospital patient or nursing-care-facility resident at the time of signing. Getting these details right matters. Execution requirements are detailed and include witness-eligibility restrictions. For example, witnesses generally may not be certain relatives, people financially responsible for the declarant’s care, prospective heirs or life-insurance beneficiaries, the attending physician, employees of the attending physician, or certain other interested persons. Individuals may wish to seek legal guidance to help enable the document to be completed appropriately.

Next Steps: Creating Your Document

Because South Carolina imposes specific form, witness, affidavit, and implementation requirements, an individual may choose to consult an attorney before signing a declaration. Medical professionals can also help explain treatment options and end-of-life care choices. Fraser Law Firm, LLC assists clients with estate-planning and advance-directive documents, including South Carolina Declarations of a Desire for a Natural Death and health care powers of attorney. Whether a particular document is appropriate depends on the client’s individual circumstances and goals.