## Power of attorney in South Dakota A **power of attorney** (POA) lets you (the "principal") authorize someone else (your "agent" or "attorney-in-fact") to make decisions or take actions on your behalf. Done right, a POA is one of the most important and underrated legal documents — saving your family from court guardianship if you become incapacitated. ### Two main types - **Financial / general / durable POA** — covers bank accounts, real estate, investments, taxes, and business decisions - **Healthcare / medical POA** (sometimes called a Health Care Proxy or Advance Directive) — covers medical decisions when you can't make them yourself ### South Dakota's execution rules - **Adopts the Uniform Power of Attorney Act?** Yes. - **Financial POA notarization:** Yes. - **Healthcare POA witnesses:** 2 witnesses. ## Durable vs non-durable - **Durable POA** — remains valid after the principal becomes incapacitated. THIS is what you want for incapacity planning. - **Non-durable POA** — terminates the moment the principal becomes incapacitated. Useful only for one-time transactions. - **Springing POA** — only takes effect when a triggering event occurs (typically incapacity). Sounds appealing but creates problems — banks often demand evidence of the triggering event before honoring it. Most modern POAs are durable + immediate (effective on signing). ## What financial POAs typically authorize Common powers an agent can exercise (each must usually be specifically granted): - Banking transactions (deposit, withdraw, write checks) - Real estate transactions (buy, sell, lease, mortgage) - Stock and investment transactions - Tax filings and IRS interactions - Insurance decisions - Operating a business - Borrowing money - **Gifting** (powerful — and easily abused; many states require this be specifically granted) - **Changing beneficiary designations** (also typically requires explicit grant) - Making transfers to revocable trusts Powers NOT typically granted to a financial agent: making/changing the principal's will, making medical decisions (that's the healthcare POA's job), or marrying/divorcing on behalf of the principal. ## What healthcare POAs typically authorize - Choosing doctors and hospitals - Consenting to or refusing medical treatments - Making end-of-life decisions - Authorizing pain management even if it shortens life - Receiving HIPAA-protected medical information - Withdrawing artificial nutrition/hydration (in some states this needs explicit authorization) - Decisions about organ donation, autopsy, and disposition of remains A **living will** (separate document or combined with the healthcare POA) sets out your wishes for end-of-life care directly — useful when no agent is available or as guidance to the agent. ## Choosing your agent - **Pick someone you trust completely** — agents have enormous power - **Pick someone available** — agents have to act, sometimes urgently - **Pick someone competent** — handling banks, insurance companies, and hospitals takes time, attention, and patience - **Name a backup** — agents die, become incapacitated, or decline to serve - **Talk to your agent** — they need to know they're named AND need to know your wishes Spouses are common choices. Adult children are common backups. Friends and siblings work too. Avoid naming professional advisors unless you've thought it through — conflicts of interest and capacity to act both come up. ## When to use them POAs activate when the principal is alive but unable (or unavailable) to act: - **Incapacity** — coma, dementia, severe illness - **Travel/deployment** — military, extended business travel, expat residency - **Convenience** — letting an adult child handle elderly parents' bills - **Surgery / hospitalization** — short-term inability to handle business POAs DIE with the principal — at death they're no longer effective. Estate matters then transition to the executor under a will (or administrator under intestacy) or trustee under a living trust. ## Common ways POAs go wrong - **Bank refusal** — banks sometimes refuse to honor old or non-statutory POAs. Best practice: use a statutory short form, refresh every 3-5 years, give the bank a copy in advance - **Agent self-dealing** — gifting to themselves, transferring property, draining accounts. Easier when the agent is also a beneficiary - **Multiple agents disagreeing** — when two agents are named jointly, deadlock can paralyze decisions. Successor agent (one at a time) is usually better - **Lost / hidden documents** — POA you can't find when you need it is no POA at all - **Out-of-state issues** — POAs are generally honored across state lines, but practical problems arise ## Revoking a POA You can revoke a POA at any time while you have capacity: - Sign a written revocation - Notify the agent - Notify financial institutions, healthcare providers, and others who relied on the POA - Recover the original document if possible - Sign a new POA naming a different agent (the new POA usually revokes the old) ## What you should do Both POAs should be in place by the time you turn 18 — yes, 18. Once a child becomes a legal adult, parents can no longer make medical or financial decisions for them without one. For older adults, a clean financial + healthcare POA (plus a will and ideally a living trust) is the foundation of estate planning. Most South Dakota estate-planning attorneys offer flat-fee "basic estate planning packages" that include all of the above. --- *This guide is general information about South Dakota law as of early 2026 and is not legal advice. POA execution rules vary by document type and recent amendments (NY 2021, PA 2015) have updated requirements. Talk to a licensed South Dakota estate-planning attorney about your specific situation.*