How to Get Power of Attorney in South Dakota: Step-by-Step Process

Setting up a power of attorney in South Dakota is something most people put off until it's urgent — a parent's health scare, an upcoming surgery, or a farm operation that can't wait. The process itself is not complicated, but South Dakota's requirements under SDCL Chapter 59-12 have a few non-obvious steps that trip people up.

Step 1: Decide What Type of Authority You Need

South Dakota recognizes two main categories:

Financial power of attorney (SDCL Chapter 59-12) covers bank accounts, bill payments, real estate transactions, tax filings, business operations, and investment management.

Healthcare power of attorney (SDCL 59-7-2.1) covers medical treatment decisions, long-term care placement, and end-of-life care choices. This is activated only when a physician determines the principal lacks decisional capacity.

Most people need both. They are separate documents with different execution requirements — you cannot combine them into a single form.

Step 2: Choose Your Agent

Your agent (also called attorney-in-fact) is the person who will act on your behalf. Consider:

• Trustworthiness over convenience — this person will have access to your finances or medical decisions
• Availability — an out-of-state agent can technically serve, but handling real estate recordings at the county register of deeds or visiting local banks becomes difficult
• Naming a successor — if your first-choice agent can't serve, a named successor avoids starting over. Under SDCL 59-12-10, the principal can designate one or more successor agents

For financial POAs, you can appoint co-agents who must act together, or specify that they may act independently. Each structure has practical implications — co-agents prevent unilateral action but require both signatures for every transaction.

Step 3: Draft the Document

South Dakota provides a statutory form under SDCL 59-12-41 that covers standard financial powers. You can use this form or create a customized document — either is valid as long as it meets the statutory requirements.

Key decisions during drafting:

• Durability — include the specific language from SDCL 59-12-3 so authority survives incapacity
• Immediate vs. springing — decide whether authority begins now or only upon a triggering event
• Hot powers — explicitly initial any provisions for trust modifications, gifting, beneficiary changes, survivorship rights, or authority delegation under SDCL 59-12-23
• Scope limitations — restrict authority to specific accounts, properties, or transactions if you don't want a general grant

Step 4: Execute the Document Properly

Financial POA execution:

1. The principal signs the document (or directs another person to sign in their conscious presence)
2. A notary public acknowledges the signature
3. No witnesses are required

Healthcare POA execution:

1. The principal signs the document
2. Either two adult witnesses sign, OR a notary public acknowledges the signature
3. Witnesses generally should not be the designated healthcare agent or the principal's healthcare provider

Step 5: Distribute Copies

A signed POA sitting in a drawer does nothing. Distribute certified copies or originals to:

• Your designated agent
• Your bank and financial institutions
• Your healthcare provider (for medical POA)
• Your attorney if you have one
• The county register of deeds if the POA covers real estate transactions

Under SDCL 59-12-18, banks have ten business days to accept a compliant POA after presentation. Having the document on file before you need it eliminates delays during emergencies.

Step 6: Store the Original Safely

Keep the original document in a location your agent can access — a fireproof home safe, a bank safe deposit box (if your agent is listed as an authorized accessor), or with your attorney. Do not keep it only in a safe deposit box that requires court authority to open, as that defeats the purpose.

The complete process — from drafting through notarization and distribution — can be completed in a single day with the right preparation. The South Dakota Power of Attorney Kit provides all necessary documents with step-by-step execution instructions tailored to SDCL Chapter 59-12 requirements.

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