A health care directive and living will is a type of advance health care directive (an “advance directive“). You (the “declarant”) can use your health care directive and living will to make decisions on your medical choices in advance. To complete your document, you will need to state which treatments you would accept or reject if you ever suffer from a terminal condition or permanent unconsciousness.

If you would prefer a natural death without heroic medical treatments, you can make this clear in your health care directive and living will. It can be tempting to avoid thinking about this scenario, but it may give you peace of mind to know that you have made your own decisions on potential future medical procedures. If you have any trouble with your choices, you should discuss them with a trusted doctor or loved one.

In South Carolina, you have the option of naming a trusted person to make health care decisions for you. Their authority would begin if you become unable to direct your own health care.

The person you choose for this duty is usually called a health care agent (an “agent”). You may also hear people call them a health care proxy. The legal document you use to name this person is called a health care power of attorney (a “POA”).

You do not have to select a health care agent, but you may want to. It can be good to know that there is a trusted person ready to make treatment decisions for you just in case of medical incapacity. Your agent’s legal duty is to carry out the instructions in your health care directive and living will. If medical issues arise that are not covered by your advance directives, your agent should act in your best interest with your personal preferences in mind.

Under South Carolina’s Health Care Power of Attorney Act, your health care agent must be at least 18 years old, of sound mind, and cannot be:

• Your health care provider
• An employee of your health care provider or nursing care facility
• The spouse of your health care provider or their employee

The exception to the above restrictions would be if the person is a relative of yours. If your relative falls into one of the above categories, they may still act as your agent.

Many people choose a close loved one as their health care agent. You might consider your spouse, parent, sibling, or adult child. You should choose somebody who you trust completely with broad authority over your care. Your agent will be able to direct your health care and make any medical decisions you would have been able to make when you were competent to do so. They will have access to your medical records too.

However, if you wish to limit your agent’s powers or give specific instructions, you can do this in your POA document.

You should discuss this responsibility with your agent before naming them. You will need to make sure they are willing and able to carry out this important task. It is wise to select an alternate agent too. This person will act as your agent if your first choice becomes unable to.

To make your health care directive and living will legally valid, you must sign it and follow the execution requirements in South Carolina’s statutes. Section 40 of South Carolina’s Death With Dignity Act details the signing requirements:

• You must sign and date your health care directive and living will in the presence of a notary public and two witnesses. Neither of your witnesses may be your attending physician or their employee. One of your witnesses can be your notary public.
• Your witnesses must sign an affidavit. This verifies that they are not related to you, do not stand to inherit from you, are not financially responsible for your health care, and are not beneficiaries of your life insurance. Further, you must notarize this affidavit.
• No more than one of your witnesses may be an employee of a health facility where you receive treatment.

Note that there is an additional requirement if you are a hospital patient or a resident in a nursing home when you sign. If that is the case, then one of your witnesses must be an ombudsman. An ombudsman is a government-appointed official who can act as a neutral party to the execution of your health care directive and living will. You can learn more about finding an ombudsman from the South Carolina Office of Ombudsman or your county government.

Once you have properly signed your documents, you need to make sure to distribute them to the people who are involved with your health care. Your health care professionals and family members will not be able to honor your wishes if they do not know what they are.

You should give copies of your advance directives to your health care agent, your medical professionals, and your close loved ones. You should store some extra copies in a secure place that trusted loved ones have access to.

After you have completed your advance directives, you should review them from time to time. This will help to ensure that they continue to reflect your treatment wishes. A good policy is to review your documents every few years at least. You may need to update your choices even sooner when major life events occur.

For instance, if you have gone through a divorce with your health care agent, you may wish to choose a new agent. After a long-distance relocation, you may need to choose a health care agent who is located closer to you. Further, a change in diagnosis or advances in medical technology could make you rethink the choices in your health care directive and living will.

Whatever the reason, you can make unlimited updates to your health care directive and living will at no extra charge for a full year if you purchase it through FindLaw.