If you are in a position where you can no longer manage your own legal and financial affairs, a power of attorney can help. Learn about power of attorney documents and how to create a valid power of attorney in South Dakota.
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Frequently Asked Questions
- What Is a Power of Attorney?
- Who Can Be My Agent?
- What Can My Agent Do in South Dakota?
- What Is a Durable Power of Attorney in South Dakota?
- When Is the Power of Attorney Effective?
- When Does the Power of Attorney End?
- Does South Dakota Have a Statutory Power of Attorney?
- Can I Make My Own Power of Attorney in South Dakota?
- How Do I Make My Power of Attorney Valid in South Dakota?
- Do I Have to Notarize My Power of Attorney in South Dakota?
- What Should I Do After Signing My Power of Attorney?
- Does a Power of Attorney Agent Get Paid in South Dakota?
- Is My South Dakota Power of Attorney Valid in Another State?
- Can I Revoke My South Dakota Power of Attorney?
- What Estate Planning Documents Should I Have in South Dakota?
What Is a Power of Attorney?
A power of attorney (POA) is a legal document that allows someone, as the “principal,” to authorize another person, as their “agent” or “attorney in fact,” to act on the principal’s behalf. A power of attorney could be used for convenience if you travel frequently or when you have an illness or incapacity and can’t make decisions on your own. There are different types of power of attorney documents for different purposes.
A financial power of attorney covers legal and financial matters. The scope of your agent’s authority can be broad or limited, and the document must comply with South Dakota’s Uniform Power of Attorney Act, §59-12-1 to §59-12-43. A power of attorney for healthcare covers medical decisions and end-of-life care.
Without a power of attorney, if you are suddenly incapacitated or can’t make your own decisions, your family will have to go to court for a conservatorship. In a conservatorship action, the court names someone as your conservator to handle your decision-making. You can avoid a conservatorship by having a power of attorney because you already have an agent who will act for you.
Who Can Be My Agent?
In South Dakota, any competent adult (meaning having a sound mind) that you trust can serve as your agent. When choosing an agent, such as a family member, friend, or professional advisor, you also want someone responsible and organized. Your agent has broad power over your money and property, but they also have a fiduciary duty to avoid conflicts of interest and act in good faith in your best interest.
It is not a good idea to name co-agents in your power of attorney because it creates problems. If co-agents must act jointly, they must always agree to get anything done. So what happens if they have differing opinions about what is in your best interest? If co-agents can act independently, they may contradict each other or reverse each other’s actions. Instead, it is better to name one person as the primary agent and another person as the backup or successor agent if your primary agent is unable to serve.
What Can My Agent Do in South Dakota?
In your power of attorney, you decide what you want your agent to do. Typical tasks may include bill paying, maintaining your family’s support, and making financial decisions. Under South Dakota statutes §59-12-26 through §59-12-39, you can grant your agent general authority to handle transactions involving the following subjects:
- Real property (your real estate)
- Tangible personal property (your possessions)
- Stocks and bonds
- Commodities and options
- Banks and other financial institutions
- Operation of entity or business
- Insurance and annuities
- Estates, trusts, and other beneficial interests
- Claims and litigation
- Personal and family maintenance
- Benefits from governmental programs or civil or military service.
- Retirement Plans
- Taxes
- Gifts
However, there are other specific powers that a principal must expressly authorize under §59-12-23, such as the following:
- Create, amend, revoke, or terminate a living trust
- Make a gift
- Create or change rights of survivorship
- Create or change a beneficiary designation
- Delegate authority granted under the power of attorney
- Waive your right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan
- Exercise fiduciary powers that the principal has authority to delegate
- Disclaim property, including a power of appointment
Some of these powers have the potential to reduce your estate. You may want your agent to have this ability to minimize your estate taxes or qualify you for government benefits like Medicaid. Decide what you want your agent to be able to do and talk to them about how to handle your money and property.
What Is a Durable Power of Attorney in South Dakota?
A durable power of attorney remains in effect even if the principal becomes incapacitated. Under §19-12-3, a power of attorney in South Dakota is durable if it contains the words: “This power of attorney shall not be affected by disability of the principal” or “This power of attorney shall become effective upon the disability of the principal,” or similar words.
When Is the Power of Attorney Effective?
A power of attorney in South Dakota is effective upon signing under §59-12-8. However, a principal may make it effective at a future date or contingent event, such as the principal’s incapacity, called a “springing” POA.
When Does the Power of Attorney End?
In South Dakota, a power of attorney ends upon the principal’s death, revocation by the principal, the occurrence of a specified event, or if the agent resigns or can no longer carry out the duties, as detailed in § 59-12-9. The power of attorney also ends if the principal is incapacitated and the power of attorney is non-durable. Additionally, if your spouse is your agent and you file for divorce or annulment, their authority terminates. That is why it is a good idea to name a backup agent.
Does South Dakota Have a Statutory Power of Attorney?
Yes. South Dakota provides a statutory power of attorney form under §59-12-41. However, you do not have to use the statutory form. You can either make your own power of attorney customized for your situation or hire an estate planning attorney.
Can I Make My Own Power of Attorney in South Dakota?
Yes. If you are an adult and mentally competent, you can make your power of attorney in South Dakota. When making a power of attorney, you should first know who you will name as your agent and what you want them to do. Many people use state-specific online estate planning forms that conform to South Dakota law and follow the signing requirements. However, if you have other questions about POAs, you should talk to an attorney for legal advice.
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How Do I Make My Power of Attorney Valid in South Dakota?
To make your power of attorney valid in South Dakota, you must write it, and either you sign it or direct someone to sign it for you in your conscious presence. A notary public must also attest to your signature per §59-12-4. You do not need any witnesses for your POA.
Do I Have to Notarize My Power of Attorney in South Dakota?
Yes. A notary or other individual authorized to take acknowledgments must notarize your signature on the document for a valid power of attorney.
What Should I Do After Signing My Power of Attorney?
After signing your power of attorney, keep the original and provide copies to your agent and any other parties that you want to be notified. A third party may ask your agent to sign an agent certification form in which your agent certifies under oath that your power of attorney is effective and they can act on your behalf. Talk with your agent about their responsibilities and your expectations.
Does a Power of Attorney Agent Get Paid in South Dakota?
An agent may receive reimbursement for reasonable expenses incurred by acting under a power of attorney and may receive reasonable compensation for their services unless the principal states otherwise in the power of attorney document.
Is My South Dakota Power of Attorney Valid in Another State?
Yes. Generally, a power of attorney created in South Dakota and executed according to South Dakota state law will be recognized in other states.
Can I Revoke My South Dakota Power of Attorney?
Yes, you can revoke your South Dakota Power of Attorney at any time as long as you are competent. To revoke, you should provide written notice to your agent and any third parties who have been relying on the POA.
What Estate Planning Documents Should I Have in South Dakota?
You should consider a health care directive and a last will and testament in addition to your financial power of attorney for a comprehensive estate plan.
A health care directive, or an advance directive, combines a power of attorney for healthcare and a living will declaration. You name an attorney-in-fact to talk to medical providers, access your healthcare records, and make healthcare decisions when you can’t. You can also detail your wishes for medical procedures or life-sustaining treatments you want when you have an end-stage illness or terminal condition.
A last will and testament is a document used at your death to determine how to distribute your property and assets and who cares for your minor children and pets. Without a will, a court follows state intestacy laws and makes these decisions about your dependents. With a will, you are in charge of what happens to your loved ones and your property. When making a will in South Dakota, you must follow the state’s laws and execution requirements.
Fortunately, with online estate planning templates, it is easy to create a valid power of attorney and other South Dakota estate planning documents.
