The South Carolina Death with Dignity Act allows South Carolinians to sign a type of living will (called a "Declaration of Desire for a Natural Death") through which the medical provider is directed to withhold life-sustaining treatment under certain circumstances. This written statutory form allows an individual to give directions to his/her physician and family about what should happen near the end of life with respect to the withholding of or providing of medical treatment.

Generally, the law provides that if the statutory form is signed and the patient is terminal or in a state of permanent unconsciousness, life-sustaining treatment may be withdrawn or withheld.

The act describes “Terminal Condition” as "an incurable or irreversible condition that within reasonable medical judgment could cause death within a reasonably short period of time if life sustaining procedures are not used.”

The act describes “Permanent Unconsciousness” as the person being in a persistent vegetative state or some other irreversible condition in which there is no neocortical functioning, but only involuntary vegetative or primitive reflex functions controlled by the brain stem.

The South Carolina “living will” must be notarized and, if signed in the hospital, the ombudsman’s office must be involved to assure that the document is signed voluntarily. Unfortunately the “living will” does not apply to many chronic diseases such as end-stage Alzheimer’s disease and dementia.

For that reason, the more flexible and expansive Health Care Power of Attorney is a better choice to direct end-of-life and other conditions when an individual is unable to make his or her decisions. Through this springing durable power of attorney for health care, an individual can not only authorize an agent to refuse or direct the withdrawal of life sustaining medical treatment under certain circumstances, but also consent to or refuse treatment for most medical conditions when the patient is incapacitated or unconscious.

Through the Health Care Power of Attorney, a person appoints an agent to deal with a particular matter or class of matters. The agent is sometimes called an "attorney-in-fact". In the case of a HCPOA, the matters upon which the agent acts are health care decisions. When in effect, the agent is placed in the shoes of the patient with respect to all health care decisions, and health care providers are bound to honor these decisions as if they were the decision of the principal.

South Carolina’s Health Care Power of Attorney has been amended so that language other than that in the statute can be used so long as the document is notarized. The advantages of the heath care power of attorney include providing more certainty for medical professionals who might otherwise feel compelled to question the validity of the HCPOA or the agent's authority, and making the document more accessible to a much wider segment of the public as it can be disseminated from various sources and can be executed without the assistance of an attorney.

While everyone should have a health care power of attorney,

Everyone have a health care power of attorney. First, it does not become effective until the incompetence or incapacity of the person who signs it, and it can be revoked or changed at any time prior to the signor becoming incompetent.

If a health care power of attorney is used as a substitute for a living will, the principal transfers difficult and often stressful end-of-life decisions to the agent. While this may ease the burden on the principal, it may prove a very difficult task for the agent. For that reason, some people sign both a living will and a health care power of attorney, leaving the termination of life sustaining treatment decisions in the hands of the principal and allowing the agent to make other health care decisions as necessary. If you sign both, in an end of life situation, the living will “trumps” the health care power of attorney by law.

If an individual does not have a health care power of attorney, becomes incapacitated, and a medical decision is necessary, the final avenue left to the family is the Adult Health Care Consent Act through which the legislature has listed priority of family members in making health care decisions. In the event of a dispute, guardianship in the probate court is the only remaining option.

By Jan L. Warner for ElderLaw Services of South Carolina, PA.