What Is a South Dakota Power of Attorney?
A South Dakota power of attorney allows you to name another individual to act on your behalf if you are physically absent or unable to express your preferences for medical care. This legal document is used in estate planning to ensure your wishes are followed. It can also be used in your absence to conduct real estate transactions, pay bills, and access bank accounts.
The person providing power to act on their behalf is called the principal, while the person receiving the power is the agent. A POA must be written while the principal is of sound mind and body. It can’t be created once the principal is incapacitated because they must agree to the terms. Title 59, Chapter 12 of the South Dakota Codified Laws governs South Dakota POAs.
Types of Powers of Attorney in South Dakota
A South Dakota power of attorney may be general, granting broad power over a principal’s financial and personal matters, or limited to specific decisions such as health care or financial transactions. The type of POA you choose depends on your needs.
Durable (Financial)
Use if you wish for the agent to retain their powers even when you become incapacitated (legally unable to make your own decisions).
Signing Requirements: Notary public (§ 59-12-4, § 59-12-42).
Medical
Give another person or entity the authority to make health care and medical decisions on your behalf.
Signing Requirements: Notary public and two witnesses (§ 59-7-2.1).
Limited (Special)
Allows you to temporarily give limited powers to an agent for specific tasks (such as signing paperwork).
Signing Requirements: Principal only (§ 59-6-11).
Non-Durable (General)
Allow a third party to manage your financial affairs on your behalf.
Signing Requirements: Notary public (§ 59-12-4, § 59-12-42).
Springing
Comes in effect when a specific event occurs, such as the incapacitation of the principal. In essence, the document “springs” into action.
Vehicle (Form 1023)
Allow another individual to act on your behalf concerning vehicle-related matters.
Signing Requirements: Notary public.
Real Estate
Name a real estate agent or a family member to handle your property-related affairs.
Signing Requirements: Notary public.
Tax (Form RV-071)
Name an agent to represent you when handling your tax affairs.
Signing Requirements: Principal, attorney-in-fact, and notary public.
Minor (Child)
Entrust someone to care for your child when you're traveling, in the hospital, or otherwise unavailable.
Signing Requirements: Notary public.
Durable vs. Non-Durable POAs
Both general and limited POAs in South Dakota can be written as durable or non-durable, depending on your needs. A durable power of attorney stays in effect even if you (the principal) become incapacitated. This type is commonly used in long-term planning and medical or financial matters.
A non-durable POA, on the other hand, ends at a specific time or when a triggering event occurs, such as if the principal becomes incapacitated or passes away.
Under SD Codified L § 59-12-3, a POA is not considered durable by default. To make your POA durable, it must clearly state that it will continue even if the principal becomes disabled or incapacitated.
Legal Templates provides free, state-specific POA forms that include the correct language to meet South Dakota’s legal requirements.
Medical POA
A durable medical power of attorney for health care is a limited POA created specifically to appoint an agent to make medical decisions when you can’t make them yourself. POAs are different from living wills.
A medical power of attorney in South Dakota simply names the person who will communicate your health care wishes, while a living will outlines your preferences for life-sustaining medical care. Use our free medical power of attorney form for South Dakota to draft your advance directives.
Financial POA
A South Dakota financial power of attorney designates an agent to manage your financial and business dealings. The POA gives the agent authority to do things like authorize payment on bills, manage investments, and engage in real estate transactions. Easily create your own financial power of attorney form for South Dakota with the Legal Templates fillable document.
How To Write a Power of Attorney for South Dakota
Write a power of attorney that will stand up in South Dakota courts by including these key legal components:
- Agent designation: Clearly name the agent or agents to whom you are granting decision-making authority. South Dakota allows you to name one or more co-agents or a successor agent who can act if an agent is unwilling or unable, per SD Codified L § 59-12-10. If you don’t have a POA and unexpectedly become incapacitated, a court will appoint a conservator or guardian to manage your affairs, as outlined in SD Codified L § 59-12-7. When you name an agent in your POA, South Dakota courts honor your wishes unless there are concerns about the agent’s ability to serve.
- Scope of authority: State what authority the agent has to make decisions regarding your finances, health care, real estate, or business.
- Duration and termination: If the POA is time-limited, the date or event that causes it to be effective and the date or event that terminates the agreement must be listed.
- Principal’s signature: A power of attorney must be signed by the principal or in the principal’s conscious presence by someone the principal directed to sign for them.
- Agent’s signature: Named agents in South Dakota have to accept their appointment and agree to act in the principal’s best interest. Their signature on the POA signals the agent’s acceptance of authority.
- Notarization: Notarizing your form is the final step to making your POA legal, as per SD Codified L § 59-12-4.
Legal Requirements and Considerations for South Dakota POAs
South Dakota has state-specific legal requirements for POAs. Our South Dakota power of attorney forms cover all these considerations and more so you are left with a legally sound document.
Duration
Powers of attorney in South Dakota go into effect when they’re signed unless you provide a different date, event, or contingency. For example, you could write a clause making your POA effective upon the principal’s incapacitation. Consider authorizing one or more people to verify that the contingency has occurred. If you don’t, a physician or judge may also serve to verify POA contingency.
A non-durable POA ends when the time limit expires or upon the principal’s incapacity. Durable POAs last until they are terminated or revoked.
Termination
There are several reasons a POA could be terminated:
- Principal’s incapacitation (if non-durable)
- Death of the principal
- Principal revokes the POA or the agent’s authority
- POA clause calls for termination
- Purpose of a limited POA is met
- Agent dies, is incapacitated, or resigns
- Divorce when the named agent is the principal’s spouse, or when a protection order is filed against the principal’s spouse
Revocation
Revoke a POA by destroying the original document and any copies and notifying the agent and interested third parties verbally or in writing. The most legally sound way to terminate a POA is to draft a written South Dakota revocation of a power of attorney. Attach the signed revocation document to the original POA.
Filing
If your POA involves the authority to engage in real estate transactions, file a copy with your local county register of deeds office.
Signing and Notarization
In addition to the principal’s and the agent’s signatures, POAs in South Dakota must be notarized, as per SD Codified L § 59-12-7. Legal Templates provides a place for a notary public or other qualified government official to notarize your POA.
