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Adam Ramirez has been writing and editing about the law and legal issues for more than 20 years. After earning a law degree from the University of Arizona, he clerked for two years for a U.S. District Court judge. He researched and wrote legal precedent in published opinions on behalf of the Court. He previously was an editor, columnist and journalist at the Miami Herald, The Dallas Morning News, The Oregonian, Golf Digest, FindLaw.com and other media outlets.
Adam Ramirez has been writing and editing about the law and legal issues for more than 20 years. After earning a law degree from the University of Arizona, he clerked for two years for a U.S. District Court judge. He researched and wrote legal precedent in published opinions on behalf of the Court. He previously was an editor, columnist and journalist at the Miami Herald, The Dallas Morning News, The Oregonian, Golf Digest, FindLaw.com and other media outlets.
Jeffrey Johnson started his editorial career nearly 20 years ago as an editor and researcher for McGraw Hill and Pearson. After earning an MFA from Chapman University and his J.D. from the University of Baltimore School of Law, he combined his editorial and writing experience with his legal education. He served as the Managing Legal Editor for the websites Free Advice and Law Firm, and has been featured as a legal expert on The Manifest and Vice.
Jeffrey Johnson started his editorial career nearly 20 years ago as an editor and researcher for McGraw Hill and Pearson. After earning an MFA from Chapman University and his J.D. from the University of Baltimore School of Law, he combined his editorial and writing experience with his legal education. He served as the Managing Legal Editor for the websites Free Advice and Law Firm, and has been featured as a legal expert on The Manifest and Vice.
Editorial Note: We earn a commission from partner links on Forbes Advisor. Commissions do not affect our editors’ opinions or evaluations.
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A power of attorney (POA) form is a legal tool that allows someone to act on your behalf. These flexible and powerful documents can be limited or expansive. Some may simply allow someone to make medical decisions due to your incapacity, while others grant full control over your property and finances.
You can use our free South Dakota power of attorney template to customize and create a document tailored to meet your needs.
What Is a Power of Attorney?
A power of attorney is a legal document where one person, referred to as the principal, gives another person, known as the “attorney-in-fact,” authority to make decisions for them. The attorney-in-fact doesn’t need to be an actual attorney, but they should be someone the principal trusts to make sound choices on their behalf.
Powers of attorney can be “durable,” which means they are still in effect if the principal becomes incapacitated or unable to make decisions. Durable powers of attorney typically end with the principal’s death. A general power of attorney that is not durable is no longer effective if the principal becomes incapacitated.
In most states, a power of attorney must be notarized to be effective.
Who Should Use a Power of Attorney Form?
Anyone who wants to ensure that a specific person has the power to act on their behalf should consider a power of attorney. A POA is a powerful, viable tool in any situation where you need someone to act for you. You don’t have to be old or sick.
That said, if someone does become incapacitated, they’re covered. Indeed, if you consult with an estate planning attorney, odds are they will discuss using a power of attorney.
How to Create a Power of Attorney in South Dakota
You must satisfy the following requirements to create South Dakota power of attorney:
- 1. The principal must be competent, meaning they can make their own decisions.
- 2. The power of attorney must be in writing.
- 3. The document must contain:
- The name of the attorney-in-fact
- The responsibilities the principal gives the attorney-in-fact
- The principal’s signature, which in must be notarized
- The date of execution
While not required, you may wish to give copies of the final, signed document to your attorney-in-fact, financial institution and key family members. Store the original in a safe place. Revisit your power of attorney regularly and update it as circumstances change.
Types of Powers of Attorney
There are two broad categories of powers of attorney based on how expansive they are and the state of the principal.
Narrow or Broad Powers of Attorney
Narrow powers of attorney are limited to a specific task or situation the principal wants the agent to perform on their behalf. These powers of attorney can be as narrow as a POA to sell a vehicle or as broad as granting the agent the ability to act in all financial matters.
Among the more well-known powers of attorney is the medical or health care power of attorney. This document grants the agent the authority to make medical decisions on behalf of the principal when they are incapable of making those decisions themselves. An advanced or healthcare directive combines a medical POA with a living will to ensure that the principal’s wishes and interests are carried out in case of incapacity.
Powers of Attorney Based on Different Capacities
One of the main reasons that powers of attorney are created is to deal with the possibility of becoming incapacitated. Many POAs are designed based on the capacity of the principal.
- General Power of Attorney. A general or “non-durable” power of attorney can only work when the principal is competent. If the principal becomes incapacitated, the POA is no longer functional.
- Durable Power of Attorney. When creating a durable power of attorney, the principal intends for the agent to have authority no matter what. In South Dakota, durability is not presumed. This means a power of attorney will not automatically remain effective if the principal becomes disabled or incapacitated.
- Springing Power of Attorney. Sometimes called a “standby” power of attorney, the springing POA only becomes effective if the principal becomes disabled or incapacitated.
Who Can Be an Attorney-in-Fact?
Despite the term “attorney-in-fact,” you don’t have to be an attorney to serve in the role. In fact, nearly anyone can be an agent or attorney-in-fact. As long as the person selected is a legal adult and competent, they can serve as an agent.
The most important qualification is not an official one—the attorney-in-fact should be someone the principal trusts. A POA can grant a lot of power to the agent, so it’s essential that the agent be a person likely to do what the principal would prefer.
What Are the Signing Requirements for a Power of Attorney Form in South Dakota?
Who must sign a power of attorney and other requirements vary by state. In South Dakota, a power of attorney form must be notarized to be valid.
Do You Need a Lawyer to Get a Power of Attorney in South Dakota?
You can always go it alone and create your own South Dakota power of attorney. There are no requirements that you use an attorney. That doesn’t mean it’s a good idea.
A power of attorney can grant broad powers to the attorney-in-fact, so it’s a good idea to have a trusted lawyer review the document before signing.
Frequently Asked Questions (FAQs)
Does power of attorney end at death?
After the principal’s death, they are no longer considered to own any property and have no more rights that an agent could exercise on their behalf. Therefore, once a principal dies, the power of attorney ends.
At that time, all the rights over the deceased’s property become the responsibility of their estate and executor.
How do you get power of attorney if someone is incapacitated?
Power of attorney can only be granted by a principal of sound mind, so if someone becomes incapacitated, they can no longer appoint someone to be their agent. You can, however, petition the court to make you the person’s conservator or guardian. Once this appointment is made, you can act on the person’s behalf yourself or grant power of attorney to an agent to act for them.
How do you take power of attorney away from someone?
Anyone besides the principal or their guardian can only take away power of attorney by petitioning the court to intervene. As the principal—or the principal’s legally-appointed guardian or conservator—you can revoke a POA at any time, as long as you are of sound mind. You need to revoke the agent’s ability to act for you in writing and the revocation must clearly state the intention to revoke the power of attorney.
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