SD POA Laws:
A South Dakota power of attorney must comply with Title 59 of South Dakota’s Codified Laws. The State of South Dakota established laws that must be followed to create a legally enforceable power of attorney to ensure that the form, as well as its duties and power over the principal, are protected under the law. Here are some of the state’s power of attorney requirements:
- With a South Dakota durable power of attorney for healthcare, the agent continues to make decisions if the principal faces incapacitation. However, the agent does not have the power to authorize the withdrawal of artificial nutrition and hydration, comfort care, or pain relief.
- The specific intent of the power of attorney must be included in the document even when the principal is disabled.
- Life-sustaining treatment must be given to a pregnant woman unless a live birth is unlikely.
- According to the State Bar of South Dakota, a POA must be signed by the principal in front of a notary public.
- The principal must be at least 18 years old.
- The principal must be of sound mind and understand what they are signing.
The principal has the ability to specifically state which powers the agent may and may not exercise on their behalf. The principal may also terminate (revoke) the power of attorney as long as they are not considered incompetent.
Additionally, South Dakota law states that a power of attorney is also terminated if:
- The term written within the document expires.
- The principal dies.
- The principal becomes incapacitated and the POA is not durable.
- The POA fulfills its use according to the terms of the document.
- The agent dies, becomes incapacitated, or resigns.
Why Would You Use a South Dakota Power of Attorney Form?
There are many reasons why someone may want to use a South Dakota power of attorney form to give someone else the ability to make decisions related to their tangible personal property, financial institution transactions, tax matters, or their well-being. Some of those reasons include:
- Age, mental health concerns, or illnesses. They could want their affairs handled in specific ways. It is generally advised that everyone, including those with a terminal illness and those with perfect health, ensure they have their matters handled the way they want and their wishes fulfilled.
- A person living with a mental illness may need a different power of attorney than a person diagnosed with a terminal illness.
- A person who has dependent children may need a different power of attorney than a person who does not have dependent children.
Each person’s power of attorney needs may vary. Thankfully, there are different types of power of attorney forms available. Before you decide to use one, you should seek legal advice to determine which one is best for your needs. You should also ask a lawyer how to revoke a POA should it become necessary. Here are the most commonly used South Dakota power of attorney forms.
South Dakota General Power of Attorney
A general power of attorney grants an agent with the ability to handle matters on behalf of the principal.
- However, in South Dakota, the principal is required to clearly explain what the agent may and may not do. So, in effect, even a South Dakota general power of attorney is somewhat limited. This POA is terminated if the principal revokes it, if its purpose is fulfilled, if the principal dies, or if the principal becomes incapacitated.
Durable Power of Attorney
A durable power of attorney is an "extended version" of a general power of attorney because it continues even if the principal becomes incapacitated.
- Many healthcare POAs in South Dakota are considered durable, although they are also limited, to some degree, as to what the agent can and cannot do for the principal. A durable POA can be revoked by the principal as long as the principal isn’t incapacitated.
Limited Power of Attorney
A limited power of attorney grants limited power to whatever the principal specifies.
- Because of the way the State of South Dakota created its laws related to POAs requiring the principle to explain what agents can and cannot do, POAs in South Dakota fall into the limited category most of the time even if they are durable. Unless they are durable, a limited power of attorney becomes invalid if the principal becomes incapacitated or dies. It also terminates if it fulfills its purpose or if the principal revokes it.
Medical Power of Attorney
A medical power of attorney grants power to the agent to make important healthcare decisions on the principal’s behalf should they become incapacitated or unable to make such decisions.
- For instance, if the principal were to suffer from Alzheimer's or dementia and not be in the right frame of mind to give medical consent for certain treatments. However, this is not the same as a living will. A medical POA does not provide the agent with the legal right to make end-of-life decisions. The South Dakota Bar provides a free living will form for anyone interested in creating one.
Minor Child Power of Attorney
A minor child power of attorney allows a parent or guardian to grant decision-making rights over their child to a temporary guardian in the case that the parent or guardian may not be present during a medical emergency.
- This form is generally used if the parent or guardian must leave the country for a period of time. It may also be used if the minor child is temporarily traveling with or residing with another adult for a specific reason.
Real Estate Power of Attorney
A real estate power of attorney grants power to the agent to buy, sell, and manage real estate on the principal's behalf.
- This type of POA may be durable or non-durable. A real estate POA is very powerful. Because of this, it is important that the principal get legal advice before using it.
Tax Power of Attorney
A tax power of attorney, officially known in South Dakota as Form RV-071, allows the agent who is usually a qualified individual such as an accountant, to prepare and submit tax information to the South Dakota Department of Revenue on behalf of the principal.
- The agent may also discuss tax matters with the South Dakota Department of Revenue on behalf of the principal.
Vehicle Power of Attorney
A vehicle power of attorney, officially known as Form MV-008, allows the agent to buy, sell, and handle the necessary paperwork with the South Dakota Department of Motor Revenue on the principal's behalf.