South Dakota General Durable Power of Attorney for Property & Finances (Upon Disability)

South Dakota General Durable Power of Attorney
for Property & Finances (Upon Disability)

SIGNING & USE GUIDE — READ FIRST, THEN REMOVE BEFORE SIGNING OR RECORDING

South Dakota Statutory Form Power of Attorney (Effective Upon Incapacity)

Prepared to the South Dakota Uniform Power of Attorney Act, SDCL ch. 59-12 (statutory form, § 59-12-41). This guide and the marked packet pages are not part of the statutory form. The power of attorney itself begins on the page titled "SOUTH DAKOTA STATUTORY FORM POWER OF ATTORNEY."

See the full product page and completed sample

What this document is

This is the South Dakota statutory form power of attorney for property and finances. It lets you (the "principal") name a person you trust (your "agent") to manage your property and financial matters. It is built on the form the South Dakota Legislature published at SDCL § 59-12-41, so it is a "South Dakota compliant" power of attorney under § 59-12-18(1) — the class of power of attorney that receives the statutory reliance and acceptance protections of §§ 59-12-18 and 59-12-19.

This document does NOT authorize your agent to make health-care decisions for you. South Dakota health-care decisions use a separate document. (See § 59-12-2(2).)

Durable — and how South Dakota is different

This variant is DURABLE and SPRINGING: it takes effect only upon your later incapacity, and it remains effective during that incapacity. The Special Instructions on the form carry the pre-printed election "My agent(s) shall only have the authority to act upon my later incapacity," which is the "similar words" durability language § 59-12-3 requires. Because South Dakota is NOT a default-durability state, those words are what keep the power effective during your incapacity.

A springing power can be slower to use: before acting, your agent may be asked for a written determination that you are incapacitated. The Special Instructions name the person you choose to make that determination and recite the statutory fallback (§ 59-12-8(3)). The packet also includes a standalone HIPAA authorization so the person making the determination can obtain the health information needed — and only for that purpose.

How to complete and sign

1. Fill in your name and your agent's name, address, and telephone number. 2. (Recommended) Name a successor agent, and optionally a second successor, in case your first choice cannot serve. 3. Under GRANT OF GENERAL AUTHORITY, INITIAL each subject you want your agent to handle — or initial "All Preceding Subjects" to grant them all. 4. Under GRANT OF SPECIFIC AUTHORITY, INITIAL only the specific powers you want to give; your agent may NOT do any of those unless you initial it. 5. Add any Special Instructions. 6. Sign in front of a notary public or other officer authorized to take acknowledgments (§ 59-12-4). South Dakota does not require witnesses for a valid power of attorney.

Powers your agent has only if you initial them

The nine "specific authority" powers (create/amend a trust, make gifts, change survivorship or beneficiary designations, delegate authority, waive a joint-and-survivor annuity, exercise fiduciary powers, access the content of electronic communications, or disclaim property) are never granted by a general grant — you must initial each one you want (§ 59-12-23(1)).

Gifts. Even if you initial "Make a gift," South Dakota caps a general gift grant at the federal gift-tax annual exclusion per recipient (26 U.S.C. § 2503(b)), or double that with split-gift consent, unless you provide otherwise in Special Instructions (§ 59-12-39(2)). Gifts must also be consistent with your known objectives or best interest (§ 59-12-39(3)).

Self-dealing. Unless you provide otherwise in Special Instructions, an agent who is not your ancestor, spouse, or descendant may not use your property to benefit themselves or someone they must support (§ 59-12-23(2)). Initialing "Make a gift" alone does not lift that bar for a non-relative agent.

Trusts. Even with an express trust grant, your agent may amend, revoke, or terminate a revocable inter vivos trust only to the extent the power of attorney AND the trust instrument both allow it (§ 59-12-23(8)).

What ends the power — and what does not

The power ends when you die, when you revoke it, or when no agent is available to act (§ 59-12-9(1)). Two South Dakota rules surprise people:

• A court-appointed conservator TERMINATES it. If a court appoints a conservator or other fiduciary over your property after you sign, this power of attorney terminates and your agent must account to and deliver property to that fiduciary, unless the court orders otherwise (§ 59-12-7(2)). The nomination block on the form is your succession plan for that situation.

• A divorce filing ends a spouse-agent's authority. If your agent is your spouse, the filing of an action for divorce or annulment, for legal separation, or for a protection order ends the agent's authority — unless the power of attorney says otherwise (§ 59-12-9(2)(c)).

Signing a NEW power of attorney does NOT revoke an earlier one unless the new document says so (§ 59-12-9(6)). To revoke a prior power, use the Revocation form included in this packet (§ 59-12-43) and deliver copies to everyone who has the old one. If the old power was recorded, record the revocation in the same register-of-deeds office (§ 43-28-18).

Your agent's duties

By accepting, your agent must act in your best interest, in good faith, and only within the authority granted — and, under South Dakota's supported-decision-making duty, must if feasible encourage you to participate in decisions and to develop or regain the capacity to manage your own affairs if you are incapacitated (§ 59-12-13(1)). Unless you provide otherwise, your agent must also keep an accurate and contemporaneous record of every receipt, disbursement, and transaction (§ 59-12-13(2)(d)) and is entitled to reasonable compensation and reimbursement (§ 59-12-11).

Recording (real estate)

You do not need to record this power of attorney for it to be valid. If your agent will deal with real estate, the register of deeds may require a recorded copy. If you record, §§ 43-28-23 and 7-9-1 apply — use the optional Recording Cover Sheet in this packet as page 1 of the recorded set, leave the "prepared by" legend for the person who prepares the recording, and never put a Social Security number on a recorded document (§ 43-28-25).

Keep it safe

Sign one original and keep it where your agent can reach it. Give a copy to your agent and to any institution that will rely on it. A photocopy or electronically transmitted copy generally has the same effect as the original (§ 59-12-5(4)). Review the document every few years and after major life events.

This guide is general information, not legal advice. If your situation is complex — substantial gifts, tax or public-benefit planning, business interests, or a blended family — consult a South Dakota attorney.

SOUTH DAKOTA

STATUTORY FORM POWER OF ATTORNEY

IMPORTANT INFORMATION

This power of attorney authorizes another person (your agent) to make decisions concerning your property for you (the principal). Your agent will be able to make decisions and act with respect to your property (including your money) whether or not you are able to act for yourself. The meaning of authority over subjects listed on this form is explained in SDCL chapter 59-12.

This power of attorney does not authorize the agent to make health-care decisions for you.

You should select someone you trust to serve as your agent. Unless you specify otherwise, generally the agent's authority will continue until you die or revoke the power of attorney or the agent resigns or is unable to act for you.

Your agent is entitled to reasonable compensation unless you state otherwise in the Special Instructions.

This form provides for designation of one agent. If you wish to name more than one agent you may name a co-agent in the Special Instructions. Co-agents are required to have a majority to act unless you include otherwise in the Special Instructions.

If your agent is unable or unwilling to act for you, your power of attorney will end unless you have named a successor agent. You may also name a second successor agent.

This power of attorney becomes effective immediately unless you state otherwise in the Special Instructions.

If you have questions about the power of attorney or the authority you are granting to your agent, you should seek legal advice before signing this form.

DESIGNATION OF AGENT

I ________________________________ name the following person as my agent:

(Name of Principal)

Name of Agent: ____________________________________________

Agent's Address: ___________________________________________

Agent's Telephone Number: _______________________________________

DESIGNATION OF SUCCESSOR AGENT(S) (OPTIONAL)

If my agent is unable or unwilling to act for me, I name as my successor agent:

Name of Successor Agent: ______________________________________

Successor Agent's Address: _____________________________________

Successor Agent's Telephone Number: _______________________________

If my successor agent is unable or unwilling to act for me, I name as my second successor agent:

Name of Second Successor Agent: __________________________________

Second Successor Agent's Address: _________________________________

Second Successor Agent's Telephone Number: ___________________________

GRANT OF GENERAL AUTHORITY

I grant my agent and any successor agent general authority to act for me with respect to the following subjects as defined in SDCL chapter 59-12:

(INITIAL each subject you want to include in the agent's general authority. If you wish to grant general authority over all of the subjects you may initial "All Preceding Subjects" instead of initialing each subject.)

(___) Real Property (§ 59-12-26)

(___) Tangible Personal Property (§ 59-12-27)

(___) Stocks and Bonds (§ 59-12-28)

(___) Commodities and Options (§ 59-12-29)

(___) Banks and Other Financial Institutions (§ 59-12-30)

(___) Operation of Entity or Business (§ 59-12-31)

(___) Insurance and Annuities (§ 59-12-32)

(___) Estates, Trusts, and Other Beneficial Interests (§ 59-12-33)

(___) Claims and Litigation (§ 59-12-34)

(___) Personal and Family Maintenance (§ 59-12-35)

(___) Benefits from Governmental Programs or Civil or Military Service (§ 59-12-36)

(___) Retirement Plans (§ 59-12-37)

(___) Taxes (§ 59-12-38)

(___) All Preceding Subjects (§§ 59-12-26 through 59-12-38)

GRANT OF SPECIFIC AUTHORITY (OPTIONAL)

My agent MAY NOT do any of the following specific acts for me UNLESS I have INITIALED the specific authority listed below:

(CAUTION: Granting any of the following will give your agent the authority to take actions that could significantly reduce your property or change how your property is distributed at your death. INITIAL ONLY the specific authority you WANT to give your agent.)

(___) Create an inter vivos trust or amend, revoke, or terminate a trust

(___) Make a gift, subject to the limitations of § 59-12-39 and any special instructions in this power of attorney

(___) Create or change rights of survivorship

(___) Create or change a beneficiary designation

(___) Authorize another person to exercise the authority granted under this power of attorney

(___) Waive the principal's 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

(___) Access the content of electronic communications

(___) Disclaim or refuse an interest in property, including a power of appointment

LIMITATION ON AGENT'S AUTHORITY

An agent that is not my ancestor, spouse, or descendant MAY NOT use my property to benefit the agent or a person to whom the agent owes an obligation of support unless I have included that authority in the Special Instructions.

SPECIAL INSTRUCTIONS

(INITIAL the one statement below that matches how and when you want this power of attorney to take effect. On this product the matching statement is already selected for you and the other two are marked "N/A — not used on this form" and have no blank to initial — do not initial more than one.)

(INITIAL if you wish for the agent to have authority immediately and also during your later incapacity.)

This power of attorney is effective immediately and shall not be affected by disability of the principal. [N/A — NOT USED ON THIS FORM]

(INITIAL if you wish for the agent to only have authority upon your incapacity instead of immediately.)

(XXX) My agent(s) shall only have the authority to act upon my later incapacity.

(INITIAL if you wish for the agent to have authority immediately but not during your later incapacity.)

This power of attorney is effective immediately but shall terminate upon my later incapacity. [N/A — NOT USED ON THIS FORM]

Determination of incapacity (§ 59-12-8). I authorize the following person to determine in a writing or other record that I am incapacitated (§ 59-12-8(2)):

Name of Person to Determine Incapacity: ________________________

Person's Address: _________________________________________

Person's Telephone Number: ___________________________________

If the person named above is unable or unwilling to make the determination, this power of attorney becomes effective upon a written determination that I am incapacitated by (a) a physician or licensed psychologist, or (b) an attorney at law, a judge, or an appropriate governmental official, as provided in § 59-12-8(3). For the limited purpose of making that incapacity determination, I authorize the person named above and any such fallback determiner to act as my personal representative under HIPAA to obtain my health-care information and communicate with my health-care providers (§ 59-12-8(4)). This authorization is for the incapacity determination only and does not authorize anyone to make health-care decisions for me.

You may give additional special instructions on the following lines:

_______________________________________________________________

_______________________________________________________________

_______________________________________________________________

EFFECTIVE DATE

This power of attorney is effective upon my later incapacity as stated in the Special Instructions.

NOMINATION OF CONSERVATOR AND/OR GUARDIAN (OPTIONAL)

If it becomes necessary for a court to appoint a conservator of my estate, I nominate the following person(s) for appointment:

Name of Nominee for conservator of my estate: ________________________

Nominee's Address: _________________________________________

Nominee's Telephone Number: _________________________________

If it becomes necessary for a court to appoint a guardian of my person, I nominate the following person(s) for appointment:

Name of Nominee for guardian of my person: _________________________

Nominee's Address: _________________________________________

Nominee's Telephone Number: _________________________________

RELIANCE ON THIS POWER OF ATTORNEY

Any person, including my agent, may rely upon the validity of this power of attorney or a copy of it unless that person knows it has terminated or is invalid.

SIGNATURE AND ACKNOWLEDGMENT

________________________________________ _______________, 2___

Your Signature

Date

____________________________________________

Your Name Printed

____________________________________________

Your Address

____________________________________________

Your Telephone Number

State of ____________________________ )

)SS.

County of ___________________________ )

This Statutory Form Power of Attorney document was acknowledged before me on

_____________________, 2___ by ___________________________________.

(Date)

(Name of Principal)

__________________________________________

(Seal) Signature of Notary Public

My commission expires: ______________________________

STATUTORY FORM — AGENT'S CERTIFICATION (SDCL § 59-12-42)

This is the optional statutory form an agent may use to certify facts concerning the power of attorney. If it will be recorded with the register of deeds, §§ 43-28-23 and 7-9-1 apply.

AGENT'S CERTIFICATION AS TO THE VALIDITY OF POWER OF ATTORNEY AND AGENT'S AUTHORITY

State of __________________________ )

)SS. AFFIDAVIT

County of _________________________ )

I, ____________________________________________ (Name of Agent), certify under penalty of perjury that ____________________________________ (Name of Principal) granted me authority as an agent or successor agent in a power of attorney dated ____________________, 2___.

I further certify that to my knowledge:

(1) The Principal is alive and has not revoked the Power of Attorney or my authority to act under the Power of Attorney and the Power of Attorney and my authority to act under the Power of Attorney have not terminated;

(2) If the Power of Attorney was drafted to become effective upon the happening of an event or contingency, the event or contingency has occurred;

(3) If I was named as a successor agent, the prior agent is no longer able or willing to serve; and

(4)__________________________________________________________

(Insert other relevant statements)

SIGNATURE AND ACKNOWLEDGMENT

________________________________________________________, 2___

Agent's Signature

Date

____________________________________________

Agent's Name Printed

Agent's Address ____________________________________________

Agent's Telephone Number _____________________________________

State of ____________________________ )

)SS.

County of ___________________________ )

This Agent's Certification as to the Validity of Power of Attorney and Agent's Authority document was acknowledged before me on

_____________________, 2___ by _________________________________.

(Date)

(Name of Agent)

__________________________________________

(Seal) Signature of Notary Public

My commission expires: ______________________________

STATUTORY FORM — AGENT'S CERTIFICATION (SDCL § 59-12-42) — SPARE COPY

This is the optional statutory form an agent may use to certify facts concerning the power of attorney. If it will be recorded with the register of deeds, §§ 43-28-23 and 7-9-1 apply.

AGENT'S CERTIFICATION AS TO THE VALIDITY OF POWER OF ATTORNEY AND AGENT'S AUTHORITY

State of __________________________ )

)SS. AFFIDAVIT

County of _________________________ )

I, ____________________________________________ (Name of Agent), certify under penalty of perjury that ____________________________________ (Name of Principal) granted me authority as an agent or successor agent in a power of attorney dated ____________________, 2___.

I further certify that to my knowledge:

(1) The Principal is alive and has not revoked the Power of Attorney or my authority to act under the Power of Attorney and the Power of Attorney and my authority to act under the Power of Attorney have not terminated;

(2) If the Power of Attorney was drafted to become effective upon the happening of an event or contingency, the event or contingency has occurred;

(3) If I was named as a successor agent, the prior agent is no longer able or willing to serve; and

(4)__________________________________________________________

(Insert other relevant statements)

SIGNATURE AND ACKNOWLEDGMENT

________________________________________________________, 2___

Agent's Signature

Date

____________________________________________

Agent's Name Printed

Agent's Address ____________________________________________

Agent's Telephone Number _____________________________________

State of ____________________________ )

)SS.

County of ___________________________ )

This Agent's Certification as to the Validity of Power of Attorney and Agent's Authority document was acknowledged before me on

_____________________, 2___ by _________________________________.

(Date)

(Name of Agent)

__________________________________________

(Seal) Signature of Notary Public

My commission expires: ______________________________

OPTIONAL PACKET PAGE — HIPAA AUTHORIZATION FOR INCAPACITY DETERMINATION (not part of the statutory form)

LIMITED HIPAA AUTHORIZATION

Authorization to obtain health information solely to determine incapacity under SDCL § 59-12-8

I, the principal named in the accompanying South Dakota Statutory Form Power of Attorney, intend that power of attorney to take effect only upon my incapacity. To allow the person(s) authorized to determine my incapacity to obtain the information needed to make that determination, I authorize the disclosure of my protected health information as stated below, consistent with SDCL § 59-12-8(4) and the HIPAA Privacy Rule, 45 C.F.R. § 164.508.

1. Persons authorized to obtain information. The person I named in the Special Instructions of my power of attorney to determine my incapacity, and — if that person is unable or unwilling — any physician, licensed psychologist, attorney at law, judge, or appropriate governmental official making the determination under SDCL § 59-12-8(3).

2. Who may disclose. Any physician, psychologist, hospital, clinic, or other health-care provider or health plan that has treated or covered me.

3. Information to be disclosed. Only the health information reasonably needed to determine whether I am incapacitated within the meaning of SDCL § 59-12-1(5) — including relevant diagnoses, assessments, and records — and no more.

4. Purpose. Solely to determine whether I am incapacitated so that my power of attorney may become effective. This authorization does NOT permit anyone to make health-care decisions for me.

5. Expiration. This authorization expires when the incapacity determination described above has been made, or when I revoke it in writing, whichever is earlier. I may revoke it at any time by written notice to the provider, except to the extent the provider has already relied on it.

I understand that information disclosed under this authorization may no longer be protected by HIPAA once disclosed, and that I am entitled to a copy of this signed authorization.

____________________________________________

Signature of Principal

____________________________________________

Printed Name of Principal

________________________

Date

STATUTORY FORM — REVOCATION OF POWER OF ATTORNEY (SDCL § 59-12-43)

Use this optional statutory form to revoke a previously executed power of attorney. If it will be recorded with the register of deeds, §§ 43-28-23 and 7-9-1 apply.

SOUTH DAKOTA

STATUTORY FORM REVOCATION OF POWER OF ATTORNEY

IMPORTANT INFORMATION

This revocation of power of attorney revokes a previously executed power of attorney including any nominations of guardian or conservator made within that instrument. This revocation does not revoke any power of attorney authorizing the agent to make health-care decisions for you. You should immediately deliver copies of this revocation to any person, institution, or company that has a copy of the original power of attorney.

REVOCATION OF POWER OF ATTORNEY

I ________________________________ previously executed a Statutory Form Power of

(Name of Principal)

Attorney with a date of ____________________, 2___ and named the following person as my agent:

Name of Agent: ____________________________________________

Agent's Address: ___________________________________________

Agent's Telephone Number: _______________________________________

I also named the following successor agent(s):

Name of Successor Agent: ______________________________________

Successor Agent's Address: _____________________________________

Successor Agent's Telephone Number: _______________________________

Name of Second Successor Agent: _________________________________

Second Successor Agent's Address: ________________________________

Second Successor Agent's Telephone Number: ___________________________

I now hereby revoke that Statutory Form Power of Attorney.

EFFECTIVE DATE

This revocation of power of attorney is effective immediately.

SIGNATURE AND ACKNOWLEDGMENT

__________________________________________ ______________, 2___

Your Signature

Date

____________________________________________

Your Name Printed

____________________________________________

Your Address

____________________________________________

Your Telephone Number

State of ____________________________ )

)SS.

County of ___________________________ )

This Statutory Form Revocation of Power of Attorney document was acknowledged before me on

_____________________, 2___ by _________________________________.

(Date)

(Name of Principal)

__________________________________________

(Seal) Signature of Notary Public

My commission expires: ______________________________

OPTIONAL RECORDING COVER SHEET — use only if recording this power of attorney (not part of the statutory form)

SPACE ABOVE RESERVED — the top 3 inches of the recorded first page are left blank under SDCL § 43-28-23. The right half is reserved for the register of deeds. The left half is for the "prepared by" legend below.

Prepared by (name): ______________________________________

Address: __________________________________________________

Telephone: ______________________________

(SDCL § 7-9-1 requires every document presented for recording to carry a "prepared by" legend with the preparer's name, address, and telephone number. Leave this for the person — you or your attorney — who prepares the document for recording.)

POWER OF ATTORNEY

(Title prominently displayed below the 3-inch space, per SDCL § 43-28-23.)

Grantor (Principal): ________________________________________

Grantee (Agent): __________________________________________

County(ies) where real property is located: ______________________________

Return after recording to: ____________________________________

Recording notes: print predominantly in black ink at 10-point or larger on white paper; keep the first-page top 3 inches blank and all other margins at least 1 inch. Do not place a Social Security number or other prohibited personal information on a recorded document (SDCL § 43-28-25). If you later revoke a recorded power of attorney, record the revocation in the same register-of-deeds office (SDCL § 43-28-18).