A South Carolina health care power of attorney names a person, your agent, to make any medical decision you cannot make yourself, from consenting to surgery to choosing a facility (S.C. Code §§ 62-5-503 and 62-5-504). A living will, formally a Declaration of a Desire for a Natural Death, is your own written instruction that life-sustaining treatment be withheld or withdrawn if you are terminally ill or permanently unconscious (S.C. Code § 44-77-10 et seq.). The agent decides everything the living will does not cover; the living will binds your providers in the one situation it covers, even if your agent cannot be reached. Most people need both, and they are signed in the same meeting.
Side by side
| Health care power of attorney | Living will | |
|---|---|---|
| What it is | Appoints a person to decide for you | States your own decision in advance |
| When it applies | Any time you cannot make or communicate a health care decision | Only when two physicians certify a terminal condition or permanent unconsciousness and you cannot decide |
| What it covers | Every medical decision: treatment, providers, facilities, records, end-of-life care consistent with your wishes | Life-sustaining procedures and, if you choose, artificial nutrition and hydration |
| Signing rules | Two qualified witnesses; notary optional under the statutory form | Notary and two qualified witnesses; an ombudsman witness if signed in a hospital or nursing home |
| Can be revoked | Any time you have capacity, in writing or by signing a new one | Any time, in any way that shows your intent |
| Weak spot | Useless if the agent cannot be found or will not decide | Silent on everything short of the end of life |
Why the health care power of attorney does more
The health care power of attorney is the document that gets used. A stroke, a car crash on I-26, sedation after surgery, dementia: in each of them someone has to consent to treatment, talk to the physicians, choose between rehabilitation facilities and decide when to bring you home. South Carolina’s statutory form also includes a section in which you state your desires about life-sustaining treatment and tube feeding, so your agent has written guidance rather than a guess. Your agent must be an adult who is not your health care provider or the provider’s employee, and you should name a successor.
Why you still want the living will
The living will speaks directly to the hospital in the narrow situation the statute covers, and it does so whether or not your agent is in the building, awake, or emotionally able to say the words. It also protects the agent: a daughter who can point to her mother’s signed declaration is not the one “deciding” to stop treatment. For couples who name each other as agent, the living will matters even more, because the agent is often the person sitting in the same emergency room.
What happens if you have neither
South Carolina’s Adult Health Care Consent Act (S.C. Code § 44-66-30) supplies a decision-maker in order of priority: a court-appointed guardian, then an agent under a health care power of attorney, then a spouse unless legally separated, then a parent or adult child, then an adult sibling, grandparent or adult grandchild, then other relatives and persons with a close relationship. The list works until it does not: three adult children with equal standing and different views, a second spouse and children from a first marriage, or a partner of twenty years who is not on the list at all. Without documents, the only way to settle those disputes is a guardianship in probate court, which takes months and is public.
Signing both correctly
- Health care power of attorney: dated and signed by you before two witnesses who are not related to you, not responsible for your medical bills, not your heirs or beneficiaries, not your agent, and not your attending physician or the physician’s employee. No more than one witness may work for the facility where you are a patient. We notarize it anyway so it travels well to other states.
- Living will: dated and signed before a notary and two witnesses with the same disqualifications, one of whom may be the notary. If you sign as a patient in a hospital or a resident of a nursing home, one witness must be an ombudsman designated by the State Ombudsman.
- Copies: to your agent, your physicians and the hospital system you use (Summerville Medical Center, Trident, Roper St. Francis, MUSC) so they are in your chart before a crisis.
Which first, if you only sign one today
The health care power of attorney, because it covers everything and the living will covers one thing. But the honest answer is that both take one short meeting, both are included in every estate plan we prepare, and a plan with one and not the other leaves either the agent or the hospital guessing at the worst moment. If your documents are from another state or from before 2017, a plan review will tell you whether they need to be re-signed here.
Frost first: if a hospital or facility hands your family a health care form to sign at the bedside, call before anyone signs. The witness rules are strict, and a document that fails them is set aside exactly when it is needed.
Written by Tara L. Frost, Attorney at Law · former Dorchester County Magistrate and Associate Probate Judge. Reviewed by Jack C. Frost.
Questions people ask
Does a living will replace a health care power of attorney in South Carolina?
No. A living will only addresses life-sustaining treatment when you are terminally ill or permanently unconscious. A health care power of attorney names a person to make every other medical decision. You need both.
Does a South Carolina health care power of attorney have to be notarized?
No. The statutory form requires two qualified witnesses and makes the notary acknowledgment optional. We notarize it anyway so it is accepted without question in other states.
Who makes medical decisions in South Carolina if I have no documents?
The Adult Health Care Consent Act sets the order: a guardian, then a health care agent, then a spouse, then a parent or adult child, then an adult sibling, grandparent or adult grandchild, then other relatives and close persons. Disputes among people of equal rank end up in probate court.
Sources and further reading
Related pages
Powers of attorney
Signing and recording rules, what an agent can and cannot do, and the health care power of attorney.
Learn moreLiving will
What the declaration covers, the witness and notary rules, when it takes effect and how it works with a health care POA.
Learn morePlan reviews & trust amendments
Second opinions on existing plans; amendments and restatements of trusts.
Learn more