A power of attorney in South Dakota is a signed legal document that lets you name an agent to handle your finances, property, or health care if you cannot act for yourself. To be valid it must meet South Dakota's signing rules under the SDCL 59-12-4, and you choose whether it is durable, springing, general, or limited.
Key Takeaways
- South Dakota recognizes several types of power of attorney: durable financial, medical or health care, springing, and general versus limited.
- Signing rules are set by the SDCL 59-12-4: you sign, or direct someone to sign your name in your conscious presence, and the signature must be acknowledged before a notary public. South Dakota does not require witnesses.
- South Dakota does not make durability automatic. Under SDCL 59-12-3 the document must contain express words, such as language stating the power is not affected by your disability, showing you intend it to survive your later incapacity. Without that language, the authority ends when you lose capacity. See the Cornell Law School's overview of power of attorney law.
- You can revoke a power of attorney in writing at any time while you have capacity, and it ends automatically at your death.
What Is a Power of Attorney in South Dakota?
A power of attorney is a written document where you, the principal, give another adult, your agent or attorney-in-fact, legal authority to act for you. In South Dakota that authority is governed by the South Dakota Uniform Power of Attorney Act (SDCL Chapter 59-12). You can make the authority broad or narrow, and you decide when it starts and how long it lasts.
Most South Dakota residents use a power of attorney alongside a will, so if you have not looked at what happens without one, read our guide on how to make a valid will in South Dakota first. For the bigger picture of how a power of attorney fits with the rest of your plan, start with our South Dakota estate planning guide, and see our national breakdown of the pros and cons of adding a power of attorney to an estate plan.
What Types of Power of Attorney Does South Dakota Recognize?
South Dakota law recognizes several distinct powers of attorney, and most complete plans use more than one.
- Durable financial power of attorney. Covers bank accounts, bills, real estate, and other property. South Dakota does not make durability automatic. Under SDCL 59-12-3 the document must contain express words, such as language stating the power is not affected by your disability, showing you intend it to survive your later incapacity. Without that language, the authority ends when you lose capacity.
- Medical or health care power of attorney. A separate document naming someone to make health care decisions if you cannot. See our guide to making a living will in South Dakota for how that document works alongside your financial power of attorney.
- Springing power of attorney. Does not take effect right away. It springs into effect only after a triggering event you name in the document, most often a physician's written certification that you are incapacitated.
- General versus limited power of attorney. A general power of attorney gives your agent broad authority over most financial matters. A limited, or special, power of attorney restricts the agent to one task or a short list of tasks, such as closing a single real estate sale.
How to Make a Valid Power of Attorney in South Dakota (Step by Step)
Follow these steps to put a power of attorney in place that will hold up in South Dakota.
- Confirm you have capacity. You must understand what authority you are handing over and to whom at the moment you sign.
- Choose your agent and at least one backup. Pick someone you trust to act in your interest, and name a successor agent in case your first choice cannot serve.
- Decide the scope. Choose a general power of attorney for broad authority or a limited power of attorney for a single task.
- Decide when it starts. An immediate power of attorney is effective on signing. A springing power of attorney only takes effect once your named trigger, typically incapacity, occurs.
- Add durability language if you want it. South Dakota does not make durability automatic. Under SDCL 59-12-3 the document must contain express words, such as language stating the power is not affected by your disability, showing you intend it to survive your later incapacity. Without that language, the authority ends when you lose capacity.
- Sign according to South Dakota's execution rule. Under the SDCL 59-12-4, you sign, or direct someone to sign your name in your conscious presence, and the signature must be acknowledged before a notary public. South Dakota does not require witnesses.
- Distribute copies. Give your agent the original or a certified copy, and send copies to your bank, financial advisor, and any institution that will need to rely on it.
- Build it into a full plan. A power of attorney works best paired with a will or trust and a health care directive. Compare your options on our plans and pricing page before you sign.
When Does a South Dakota Power of Attorney Take Effect?
An immediate power of attorney is effective the moment you sign it under South Dakota's execution rule. A springing power of attorney only becomes effective once the triggering event you specified, usually a doctor's written determination of incapacity, actually occurs. Naming a springing trigger sounds protective, but it can slow your agent down at the exact moment speed matters most, so many residents choose an immediate durable power of attorney instead and simply keep it in a safe place until it is needed.
How Do You Revoke a Power of Attorney in South Dakota?
While you have capacity, you can revoke a South Dakota power of attorney at any time. Put the revocation in writing, sign and date it, and deliver copies to your agent and to any bank, title company, or other institution that has a copy of the original document, since an agent or third party who acts in good faith without notice of the revocation may still be protected. If you ever recorded the power of attorney with a county recorder because it affects real property, record the written revocation in the same office.
When Does a Power of Attorney End in South Dakota?
A power of attorney ends automatically when any of the following happens: you die, you revoke it in writing, a court invalidates it, the purpose stated in a limited power of attorney is completed, or, for a non-durable power of attorney, when you become incapacitated. A durable power of attorney is built specifically to keep working through incapacity, which is why most estate plans use one.
Frequently Asked Questions
Does a South Dakota power of attorney need to be notarized?
You sign, or direct someone to sign your name in your conscious presence, and the signature must be acknowledged before a notary public. South Dakota does not require witnesses.
Can I have more than one agent under a South Dakota power of attorney?
Yes. You can name co-agents to act together or independently, and you can name one or more successor agents to step in if your first choice cannot serve. State clearly in the document whether co-agents must act jointly or may act separately, since that avoids disputes later.
Is a springing power of attorney a good idea in South Dakota?
It can be, but it adds a step: your agent must first prove the triggering event occurred, often with a physician's letter, before anyone will honor the document. Many residents prefer an immediate durable power of attorney for that reason and simply do not use it until it is needed.
Does a South Dakota power of attorney replace a will?
No. A power of attorney only works while you are alive. It ends automatically at your death, at which point your will or trust, not your power of attorney, controls what happens to your property.
Can my agent under a South Dakota power of attorney be held accountable?
Yes. An agent owes you a duty of good faith and must act within the authority you granted and in your best interest. An agent who abuses that authority can be removed and can be held liable for the harm caused.
A power of attorney is one piece of a complete South Dakota estate plan, alongside a will and, often, a living trust. Review your living trust option in South Dakota and your South Dakota estate planning checklist, then build the rest of your plan.
