Skip to main content
South Dakota Power of Attorney
Support GuideSouth Dakota25 min read

South Dakota Power of Attorney

A South Dakota power of attorney must be notarized and must say it survives incapacity. A conservator's appointment can end it.

By Settled Editorial

A South Dakota power of attorney names an agent to handle your money and property while you are alive. Two South Dakota rules catch people who use a generic form. The document must be notarized (SDCL 59-12-4), and it survives your incapacity only if it says so (SDCL 59-12-3). A third rule matters later: if a court appoints a conservator over your property, the power of attorney ends unless the court orders otherwise (SDCL 59-12-7(2)).

The rules sit in South Dakota's Uniform Power of Attorney Act, SDCL chapter 59-12, sections 59-12-1 through 59-12-43. This page walks through the statute in plain language. Have a South Dakota attorney draft or review the document you sign, because a power of attorney hands somebody real control over your accounts.

One limit shapes everything else on this site. A power of attorney ends when the principal dies (59-12-9(1)(a)). From that moment the agent has no authority, and a personal representative appointed through probate takes over. For what happens next, start with the South Dakota probate guide.

Where The South Dakota Act Lives

South Dakota adopted the Uniform Power of Attorney Act through SL 2020 ch 214 (Senate Bill 148), titled "An Act to adopt the Uniform Power of Attorney Act." The codified chapter carries the heading "Uniform Power of Attorney Act." Some national websites say South Dakota never adopted the uniform act. The chapter heading and the session law say otherwise.

South Dakota did change the uniform text in ways that matter to you. Here is the short list:

  • Durability needs words. A power survives incapacity only if it says so (59-12-3).
  • A notary is mandatory. The signature must be acknowledged (59-12-4).
  • Co-agents act by majority unless the document says otherwise (59-12-10(1)).
  • Nine powers need an express grant, including disclaimer and electronic communications (59-12-23(1)).
  • Bank acceptance rules cover only the statutory form, on a ten-business-day clock (59-12-18, 59-12-19).
  • A conservator's appointment ends the power (59-12-7(2)).

Section 59-12-40 applies the chapter to powers created on or after July 1, 2020. A South Dakota document signed before that date stays valid if it met the law in force when you signed it (59-12-5(2)). The last change to the chapter came in SL 2023 ch 170, which added the vehicle-title notary exception, so no 2024, 2025 or 2026 act touches chapter 59-12.

Durable Only If It Says So

This is the rule most out-of-state advice gets backward for South Dakota. SDCL 59-12-3 keeps the agent's authority alive through your later disability or incapacity only if the written document contains words like these:

"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,"

Similar words also work if they show you intended the agent's authority to keep running through your disability.

Leave that wording out and the document is not durable. Section 59-12-9(1)(b) then ends the power when you become incapacitated, which is the exact moment most families need it. The uniform act, and many neighboring states, reverse this default. South Dakota does not.

The statutory form handles durability through three initialed Special Instructions:

  1. Effective immediately and not affected by disability of the principal
  2. Authority to act only upon your later incapacity
  3. Effective immediately but terminating upon your later incapacity

The form's preamble also says the agent can act "whether or not you are able to act for yourself." Do not rely on the preamble. Initial the box that matches what you want, so the durability words are in the document itself.

South Dakota defines incapacity at 59-12-1(5). It covers an impairment in the ability to receive and evaluate information or to make or communicate decisions, even with technological help. It also covers a principal who is missing, detained (including incarcerated), or outside the United States and unable to return.

One more quiet rule helps. Under 59-12-9(3), unless the document says otherwise, an agent's authority does not lapse with time. A durable power you signed years ago still works if nothing ended it.

Signing Rules: A Notary Is Required

SDCL 59-12-4 reads in full:

A power of attorney shall be signed by the principal or in the principal's conscious presence by another individual directed by the principal to sign the principal's name on the power of attorney. Any signature under this section shall be acknowledged before a notary public or other individual authorized by law to take acknowledgments.

So the checklist is short:

  • Your signature, or another person signing your name in your conscious presence at your direction
  • An acknowledgment of that signature before a notary public or another officer authorized to take acknowledgments

Chapter 59-12 asks for no witnesses, no date and no signature from the agent. The agent accepts by conduct under 59-12-12, by exercising authority or performing duties. Section 59-12-5(1) makes compliance with 59-12-4 the test of validity for a document signed in South Dakota on or after July 1, 2020. A South Dakota power signed without a notary does not meet that test.

There is one narrow exception. SDCL 59-12-4.1 exempts a power of attorney used to apply for or assign a vehicle title that is being transferred to an insurer, and it lets the principal sign that one electronically. It does not reach any other power of attorney.

Some states bar you from naming the owner or an employee of your care facility as your agent. Chapter 59-12 contains no such rule. That does not put a caregiver-agent beyond scrutiny, as the section on misuse below explains.

Immediate Or Springing

Under SDCL 59-12-8(1), a power of attorney is effective when executed. You can instead make it take effect on a future date or event, such as your incapacity. That delayed version is often called a springing power of attorney.

A springing document needs a way to prove the trigger happened. Section 59-12-8(2) lets you name one or more people to decide, in a writing or other record, that the event occurred. If the power springs on incapacity and you named nobody, or the person you named cannot or will not decide, 59-12-8(3) supplies the decider:

  • A physician or licensed psychologist, for an impairment in making or communicating decisions
  • An attorney at law, a judge or an appropriate governmental official, for a principal who is missing, detained or abroad

SL 2022 ch 187 corrected the cross-references in that subsection, and the current text above reflects it. Section 59-12-8(4) lets the person you authorized to determine incapacity act as your HIPAA personal representative to get your health information and talk with your providers for that purpose.

Nine Powers That Need An Express Grant

SDCL 59-12-23(1) lists authority an agent may exercise only if the power of attorney expressly grants it and no other agreement or instrument forbids it. South Dakota's list has nine items:

  1. Create, amend, revoke or terminate an inter vivos trust
  2. Make a gift
  3. Create or change rights of survivorship
  4. Create or change a beneficiary designation
  5. Delegate authority granted under the power of attorney
  6. Waive the principal's right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan
  7. Exercise fiduciary powers that the principal has authority to delegate
  8. Exercise authority over the content of electronic communications the principal sends or receives
  9. Disclaim property, including a power of appointment

Item 8 ties into South Dakota's digital assets law in chapter 55-19. For how an agent or executor reaches online accounts, see the South Dakota digital assets guide.

Two South Dakota limits sit on top of the list. First, section 59-12-23(8) says an agent may amend, terminate or revoke your revocable trust only when you are incapacitated or not reasonably available, and only as far as both the power of attorney and the trust instrument expressly allow. A trust that says nothing about agents blocks the agent even if the power of attorney grants trust authority.

Second, section 59-12-23(2) adds a family limit. Unless the document says otherwise, an agent who is not your ancestor, spouse or descendant may not use these powers to create an interest in your property for the agent or for someone the agent must support, whether by gift, survivorship, beneficiary designation, disclaimer or otherwise.

A general grant covers a lot. If your document gives authority to do all acts you could do, 59-12-23(3) gives the agent the general authority in sections 59-12-26 through 59-12-38, still subject to the nine-item wall.

Gifts Follow A Federal Cap

Gift authority comes with a built-in ceiling. Under SDCL 59-12-39(2), unless the document says otherwise, general gift authority lets the agent give each recipient no more than the annual federal gift tax exclusion under Internal Revenue Code section 2503(b), or twice that if your spouse agrees to split the gift under section 2513. The statute names no dollar amount, so the cap moves when the IRS adjusts the exclusion.

The agent also has to fit each gift to your objectives, if known, or to your best interest. Section 59-12-39(3) lists the factors: the value and nature of your property, your foreseeable obligations and need for maintenance, tax minimization, eligibility for public benefits, and your own history of giving.

What Your Agent Owes You

An agent who accepts the job is a fiduciary. SDCL 59-12-13(1) sets four duties your document cannot waive. The agent must:

  • act according to your reasonable expectations, as far as the agent actually knows them, and otherwise in your best interest
  • act in good faith
  • act only within the authority granted
  • if feasible, encourage you to take part in decisions and to regain the capacity to manage your affairs, if you are incapacitated

The fourth duty is a South Dakota addition to the uniform text. Section 59-12-13(2) adds default duties your document may change: act loyally for your benefit, avoid conflicts that impair impartial judgment, act with ordinary care, competence and diligence, keep an accurate and contemporaneous record of receipts, disbursements and transactions, cooperate with your health care decision-maker, and try to preserve your estate plan when that serves your best interest.

The agent does not have to report to your family on demand. Under 59-12-13(7), disclosure is owed when a court orders it, or when you, your guardian or conservator, another fiduciary acting for you, a protective agency, or after your death your personal representative asks. The agent then has 30 days, or can explain in writing why more time is needed and comply within 30 days after that.

Pay is allowed. SDCL 59-12-11 gives an agent reimbursement of reasonable expenses and reasonable compensation unless the document says otherwise.

Co-Agents Need A Majority

Naming two or three agents works differently here than in most uniform-act states. Under SDCL 59-12-10(1), unless the document says otherwise, "the concurrence of a majority is required on all acts connected with the power of attorney." A co-agent may act alone in three situations:

  • receiving and receipting for property due you
  • an emergency, when a majority cannot be reached in the time available
  • when the other co-agents delegated authority to that co-agent under 59-12-23

If you want each co-agent free to act alone, say so in the Special Instructions. A successor agent waits until every earlier agent has resigned, died, become incapacitated, stopped qualifying or declined to serve (59-12-10(2)).

South Dakota's Statutory Forms

SDCL 59-12-41 prints the South Dakota Statutory Form Power of Attorney. Using it is optional for validity, yet it carries real weight, as the next section shows. The form works in blocks:

  • Designation of agent, plus optional first and second successor agents
  • Grant of general authority, where you initial any of 13 subjects, from Real Property and Banks and Other Financial Institutions to Retirement Plans and Taxes, or initial All Preceding Subjects
  • Grant of specific authority (optional), with nine initial lines, one for each express-grant power
  • Limitation on agent's authority, restating the family limit in 59-12-23(2)
  • Special instructions, including the three durability and timing boxes described above
  • Nomination of a conservator and a guardian (optional)
  • Signature and a notary acknowledgment block

The form's own notes say it designates one agent, that co-agents need a majority to act unless the Special Instructions say otherwise, and that the agent is entitled to reasonable compensation unless you state otherwise.

South Dakota prints two companion forms. SDCL 59-12-42 is an agent's certification, signed under penalty of perjury before a notary, confirming that you are alive, the power has not been revoked or terminated, and any springing event has happened. SDCL 59-12-43 is a statutory revocation form, covered below.

Banks Get Ten Business Days, For A Compliant Power

South Dakota narrows the uniform act's bank-acceptance rules. The duty to accept and the reliance protection apply only to a South Dakota compliant power of attorney. SDCL 59-12-18(1) defines that as a document:

  • signed by the principal,
  • following the form provided in 59-12-41 in substance, and
  • acknowledged before a notary public or another officer authorized to take acknowledgments.

For that document, SDCL 59-12-19(1) gives a bank or other person ten business days after presentation to accept it or to request an agent's certification, an English translation or an opinion of counsel. After receiving what it asked for, the person has five business days to accept. Nobody may demand a different form of power of attorney for authority the presented document already grants.

Section 59-12-19(2) lists six lawful reasons to refuse. They include a good-faith belief that the power is invalid or the agent lacks authority, and a report to the South Dakota Department of Social Services, the Department of Human Services or law enforcement about possible abuse or exploitation by the agent. A wrongful refusal exposes the person to a court order mandating acceptance and to reasonable attorney's fees and costs (59-12-19(3)).

Here is why the form matters. A custom-drafted power that is valid under 59-12-4 but does not follow the 59-12-41 form in substance is still a valid document. It just carries neither the ten-day acceptance duty nor the reliance protection that makes a bank comfortable saying yes.

Section 59-12-18(1) as printed refers to "§ 52-12-19." The surrounding text, including 59-12-18(6), shows the intended reference is 59-12-19.

How A South Dakota Power Of Attorney Ends

SDCL 59-12-9(1) ends a power of attorney when:

  • the principal dies
  • the principal becomes incapacitated and the document is not durable
  • the principal revokes it
  • the document says it terminates
  • the purpose of a limited or special power is accomplished
  • the agent's authority ends and the document names no other agent
  • a court appoints a conservator under 59-12-7(2)

Section 59-12-9(2)(c) separately ends an agent's authority when an action is filed for divorce or annulment of the agent's marriage to the principal, for their legal separation, or for a protection order, unless the document says otherwise. The filing triggers it, not the decree. The statutory form's notice to the agent mentions the divorce and separation filings but not the protection-order filing. The statute controls.

Revoking your power of attorney

Chapter 59-12 lists revocation as a terminating event, and SDCL 59-12-43 supplies an optional statutory revocation form. It is effective immediately and carries a notary acknowledgment block. The form's notes say it also revokes any conservator or guardian nominations in the old document, does not revoke a health care power of attorney, and should be delivered right away to anyone holding a copy of the original.

That delivery step matters. Under 59-12-9(4), termination is not effective against an agent or anyone else who acts in good faith without actual knowledge of it, and those acts bind you. And a newer power of attorney does not revoke an older one unless it says so (59-12-9(6)). So deliver the revocation to your agent and send copies to every bank or office holding the old document.

A Conservator Ends The Power Of Attorney

This is another sharp South Dakota departure from the uniform act. Under SDCL 59-12-7(1), your document may nominate a conservator or a guardian, and except for good cause or disqualification the court must follow your most recent nomination. Then 59-12-7(2) says what happens if a court later appoints a conservator or other fiduciary to manage some or all of your property:

the power of attorney is terminated and the agent shall account to the conservator or other court-appointed fiduciary and promptly deliver any property of the principal in the agent's possession to the conservator or other court-appointed fiduciary unless otherwise ordered by the court.

The uniform act keeps the agent in place in that situation. South Dakota does the opposite. An agent who expects to keep acting should ask the court to preserve the power in its order.

A guardian or conservator also cannot quietly undo your planning. SDCL 29A-5-118 bars a guardian or conservator from revoking or amending your durable power of attorney without prior court authorization, except as 59-7-11 provides for a health care power. A well-drafted durable power can make a conservatorship unnecessary. Read South Dakota guardianship planning for what happens without a POA.

Health Care Is A Separate Document

A chapter 59-12 power of attorney cannot carry medical authority. SDCL 59-12-2(2) excludes a power to make health care decisions from the chapter, and the statutory form states that it does not authorize the agent to make health-care decisions for you.

South Dakota names a health care agent through a durable power of attorney for health care under SDCL 59-7-2.1. Its signing rule differs from the financial power: the signature "shall be witnessed by two other adult individuals or by a notary public." So a financial power needs a notary, while a health care power may use two adult witnesses instead.

Two narrow health-adjacent pieces remain in chapter 59-12. The person who decides incapacity may get your health information under 59-12-8(4). And general authority over personal and family maintenance lets an agent act as your HIPAA personal representative for decisions about paying for health care (59-12-35(1)(f)). See the South Dakota advance directive guide for the health care side.

Documents Signed In Another State

Moving to South Dakota does not void your old document. Under SDCL 59-12-5(3), a power of attorney executed outside South Dakota is valid here if its execution complied with the law of the jurisdiction named in the document (or, if none, where it was signed, under 59-12-6), or with the federal military power of attorney rules. A photocopy or electronically transmitted copy has the same effect as the original under 59-12-5(4), except as otherwise provided by law.

One catch follows from the acceptance rules above. An out-of-state power can be valid in South Dakota and still fall outside the ten-day acceptance duty, because only a document that follows the 59-12-41 form in substance counts as South Dakota compliant. If you move here and your old document does not follow that form, consider signing a new South Dakota power.

When The Agent Misuses The Power

South Dakota gives civil tools inside chapter 59-12 and criminal tools outside it.

  • Court review. Under SDCL 59-12-15, the principal, the agent, a spouse, parent or descendant, a presumptive heir, a beneficiary, a caregiver, a protective agency, a person asked to accept the power and others may petition a court to construe the document or review the agent's conduct. If the principal moves to dismiss, the court must dismiss unless it finds the principal lacks capacity to revoke. The same section preserves petitions under chapter 21-65, South Dakota's vulnerable-adult protection-order law.
  • Restitution. SDCL 59-12-16 makes an agent who violates chapter 59-12 liable to restore your property to what it would have been, plus attorney's fees and costs paid on the agent's behalf.
  • Criminal exposure. SDCL 22-46-3 makes it theft by exploitation, punishable as theft under chapter 22-30A, for a person who took on the duty to support an elder (65 or older) or an adult with a disability, and was entrusted with that person's property, to misappropriate it with intent to defraud. The statutory form's notice to the agent warns of criminal prosecution for failing to follow the agent's duties.

Recording The Document

Chapter 59-12 does not require recording for validity. When your agent deals with South Dakota real estate, the register of deeds will usually want the power of attorney on file. Section 59-12-41 points to two recording rules. SDCL 43-28-23 sets format standards for documents recorded with the register of deeds, such as paper size, black ink, 10-point type and a three-inch blank space at the top of the first page. SDCL 7-9-1 requires a "prepared by" legend with the preparer's name, address and telephone number. Because 59-12-4 already requires a notary, a South Dakota power arrives acknowledged.

Power Of Attorney Compared With Probate

QuestionSouth Dakota power of attorneyProbate after death
When it worksWhile the principal is aliveAfter the principal dies
Who actsThe agent you pickedA personal representative the court appoints
Court involvementNone, unless someone petitions under 59-12-15Informal or formal probate under Title 29A
What ends itDeath, revocation, a conservator's appointment, and the other 59-12-9 eventsClosing the estate

A power of attorney is one document in a larger set. Read South Dakota estate planning basics for the rest of a South Dakota plan, including a will and the health care documents.

When To Talk With A South Dakota Attorney

Plan a consultation if any of these apply:

  • You want the agent to make gifts, change beneficiaries or touch a trust
  • You own real estate, a business or property in another state
  • You want a springing document and need to name who decides incapacity
  • You plan to name co-agents and want them free to act alone
  • A family member might seek a conservatorship, which would end the power under 59-12-7(2)
  • You downloaded a form and cannot tell whether it was written for South Dakota, or whether it contains durability words

Bring your questions and a draft. A lawyer can fit the statutory form to your situation and make sure it works on the day your agent needs it.

Frequently Asked Questions

Does a South Dakota power of attorney have to be notarized?

Yes. SDCL 59-12-4 requires the principal's signature, or a signature made in the principal's conscious presence at the principal's direction, and says any such signature shall be acknowledged before a notary public or other individual authorized by law to take acknowledgments. Section 59-12-5(1) ties validity for a South Dakota document signed on or after July 1, 2020 to that rule. The one exception, in 59-12-4.1, covers a power of attorney used to transfer a vehicle title to an insurer.

Is a South Dakota power of attorney durable by default?

No. SDCL 59-12-3 makes the agent's authority survive your later disability only if the document contains words such as "This power of attorney shall not be affected by disability of the principal" or similar words showing that intent. Without that wording, 59-12-9(1)(b) ends the power when you become incapacitated. The statutory form puts the durability wording in an initialed Special Instruction, so initial the box that matches what you want.

What happens to a South Dakota power of attorney if a conservator is appointed?

It ends. SDCL 59-12-7(2) says that if a court appoints a conservator or other fiduciary to manage some or all of your property after you sign, the power of attorney is terminated, and the agent must account to the conservator and deliver your property, unless the court orders otherwise. Section 59-12-9(1)(g) lists this as a terminating event.

Do co-agents in South Dakota have to act together?

By default, a majority must agree. SDCL 59-12-10(1) requires the concurrence of a majority on all acts unless the document says otherwise. The exceptions are a co-agent receiving and receipting for property due you, an emergency when a majority cannot be reached in time, and a co-agent who was delegated to act for the others.

How many South Dakota powers need an express grant?

Nine. SDCL 59-12-23(1) lists creating, amending, revoking or terminating an inter vivos trust; making a gift; creating or changing rights of survivorship; creating or changing a beneficiary designation; delegating authority; waiving a joint and survivor annuity; exercising delegable fiduciary powers; authority over the content of electronic communications; and disclaiming property, including a power of appointment.

Does a bank have to accept my South Dakota power of attorney?

Only if it is South Dakota compliant. SDCL 59-12-18(1) defines that as a document signed by the principal, following the statutory form at 59-12-41 in substance, and acknowledged before a notary. For that document, 59-12-19(1) gives the bank ten business days to accept it or ask for a certification, translation or opinion of counsel, then five business days after receiving what it asked for.

Can a South Dakota power of attorney cover medical decisions?

No. SDCL 59-12-2(2) excludes a power to make health care decisions from chapter 59-12, and the statutory form says so. A health care agent is named in a separate durable power of attorney for health care under SDCL 59-7-2.1, which must be witnessed by two adults or by a notary public.

Sources:

It is not legal advice.

Prefer to talk it through? Get a free local attorney match (no obligation).

Settled Estate is not a law firm and does not give legal advice.

Not sure which documents you need?

The free estate planning assessment builds a short document list for your situation.

Take the free estate planning assessment

Information current as of September 27, 2026

Settled Estate is not a law firm, and this content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in South Dakota can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

All South Dakota guides← Back to all articles

More South Dakota Resources

Explore the rest of the South Dakota estate planning hub.

The core documents4 pages
Trusts and avoiding probate4 pages
Tools1 page