The South Dakota durable power of attorney (DPOA) is a legal document one party, called the principal, uses to authorize another party, called the agent or the attorney-in-fact, to represent them before governmental, financial, medical, and other institutions and third parties.
The main feature of a durable power of attorney is that it remains valid and effective even if the principal becomes legally incapacitated.
The principal can use the South Dakota durable power of attorney in every situation where they are not able to personally complete a certain action due to a physical or mental disability (dementia or Alzheimer’s disease) or simply because they are located far from the place where a certain action must be taken.
Durable Power of Attorney Laws & Requirements in South Dakota
Laws & Requirements
Relevant laws: Chapter 59-12 (Uniform Power of Attorney Act)
Signing requirements: A principal or another person in their conscious presence must provide a signature on the durable power of attorney before the notary public. (§ 59-12-4)
Statutory form: The South Dakota Uniform Power of Attorney Act provides the statutory form for the power of attorney at § 59-12-41.
“Durable” as defined by the state law: According to § 59-12-1(2), “Durable,” means not terminated by the principal’s incapacity.
How to Fill out a Durable Power of Attorney in South Dakota
#1. Designate an Agent
Firstly, you should determine the person who will act on your behalf and represent your interests. That should be an adult with the legal capacity to act. Moreover, you should choose someone you trust, especially if they will have the authority to make decisions regarding your finances or health care.
In some situations, where you are dealing with specific matters like taxes or certain legal issues, you should name the licensed professional as your agent. Depending on the situation, that can be an accountant, a tax advisor, a lawyer, or some other kind of professional.
Here, you can also name the successor agent. Their role will be to act in case the primary agent loses legal capacity or is otherwise unable to represent you.
#2. Grant Authority
After determining the agent, you should also define their scope of authority.
Here, you will have three main options for determining the agent’s scope of authority:
Scope of Authority
General authority. If you select this option, your agent will be able to take all the necessary actions and interact with any third party on your behalf. You can limit the general authority by providing a list of activities the agent is not allowed to take part in.
Partial authority. Here, you can select the activities you want to include in your scope of authority from the list of activities provided in the durable power of attorney form.
Special authority. This option enables you to describe the scope of authority in your own words. This means that you can include even the authorities that are not provided in the durable power of attorney form.
#3. Ensure the Form is Durable
In South Dakota, the power of attorney is not durable by default. That means that you must include specific language when drafting the document to make it durable.
#4. Sign the Form
After drafting the document, the principal or another person in their conscious presence must sign the durable power of attorney.
#5. Notarize the Form
The South Dakota durable power of attorney must be notarized. The notarization will prevent any future disputes about the authenticity of the document since the notary public will confirm the most important information about the document.
#6. Store Your Durable Power of Attorney Form
After finalizing the document, you should keep it in your possession and in a safe place.
You can also give one copy of the durable power of attorney to the agent so they can prove their capacity to the third parties they are interacting with on your behalf.
How to Revoke a Durable Power of Attorney in South Dakota
You can revoke the South Dakota durable power of attorney by making a verbal or written revocation, destroying the document with the intention of revoking it or issuing a new document that will revoke the previous one.
However, the best way to make the revocation is to issue the revocation letter. This letter should include the full name of the agent and the date of issuance of the power of attorney.
To make the revocation effective, you should give a copy of the revocation letter to the agent and to every third party they are interacting with on your behalf.