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 the attending physician determines in good faith that 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. Unless the POA provides otherwise, co-agents act by majority; the document can instead require joint action or allow independent action. Each structure has practical implications — co-agents can provide shared oversight but may slow time-sensitive transactions.

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 59-12-19, banks have ten business days to accept a compliant POA after presentation, subject to the statute's exceptions. Having the document on file before you need it can reduce 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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