Power of attorney, health care directive and guardianship in South Dakota

Financial power of attorney in South Dakota

Law and official form

Law

Uniform Power of Attorney Act

Uniform Power of Attorney Act

Yes (effective July 1, 2020)

Official form

South Dakota Statutory Form Power of Attorney (SDCL 59-12-41); also Statutory Form Revocation of Power of Attorney (59-12-43) and Agent's Certification (59-12-42)Published by South Dakota Legislature

You do not have to use it.

A document 'substantially in' this form, signed and notarized, is 'South Dakota compliant', which is what triggers the rules requiring third parties to accept it (59-12-18, 59-12-19). The form warns agents about criminal liability. SDCL 43-28-23 and 7-9-1 apply if the power of attorney is to be recorded with the register of deeds.

Law: SDCL ch. 59-12 (SL 2020, ch 214); SDCL 59-12-41 to 59-12-43

Signing rules

How to sign

Sign the power of attorney and acknowledge your signature before a notary public (or another officer authorized to take acknowledgments). Witnesses are not required. (A power of attorney to transfer a vehicle title to an insurer is exempt from notarization.)

Who signs

Signed by you (the principal), or by another person you direct to sign your name in your conscious presence.

Notary

Required

Witnesses

None required

Agent's acknowledgment

No signed acceptance is required. An agent accepts by acting as agent or by other conduct showing acceptance, unless the power of attorney says otherwise.

Law: SDCL 59-12-12

Electronic signing

'Sign' includes an electronic symbol or process and a power of attorney can be a 'record'. A power of attorney to transfer a vehicle title to an insurer may be signed electronically and needs no notary.

Law: SDCL 59-12-1; SDCL 59-12-4.1

Law: SDCL 59-12-4, 59-12-4.1

Durable and springing

Is it durable?

A power of attorney keeps working after your disability or incapacity only if it contains words such as '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', or similar words showing that intent.

Law: SDCL 59-12-3

Durable unless it says otherwise?

No: it continues after incapacity only if it says so.

Starting later (springing)

A power of attorney works when signed unless it says it starts on a later date or event. You can name people to decide in writing that the event happened. If it starts on incapacity and no one is named (or they will not decide), a physician or licensed psychologist can determine incapacity in writing; if you are missing, detained or outside the U.S., an attorney, judge or government official can.

Law: SDCL 59-12-8

What an agent can and cannot do

Needs express permission

• Create, amend, revoke or terminate a trust during your life (a revocable trust only while you are incapacitated or unavailable, and only if the trust also allows it)
• Make a gift
• Create or change rights of survivorship
• Create or change a beneficiary designation
• Delegate authority under the power of attorney
• Waive your right to be a beneficiary of a joint and survivor annuity, including a retirement plan survivor benefit
• Exercise fiduciary powers you have authority to delegate
• Access the content of your electronic communications
• Disclaim property, including a power of appointment

No power of attorney can

Unless the power of attorney says otherwise, an agent who is not your ancestor, spouse or descendant cannot use even express powers to give themselves (or someone they must support) an interest in your property. The Act does not cover health care decisions (59-12-2).

Law: SDCL 59-12-23(2)

Law: SDCL 59-12-23(1), (8)

Agent duties, pay and court review

Agent duties

• Act in line with your reasonable expectations as far as the agent knows them, otherwise in your best interest
• Act in good faith
• Act only within the authority given
• If you are incapacitated, where feasible encourage you to take part in decisions and regain capacity
• Act loyally for your benefit and avoid conflicts of interest
• Act with care, competence and diligence
• Keep accurate, contemporaneous records of all receipts, payments and transactions, including the agent's own pay
• Cooperate with your health care decision-maker
• Try to keep your estate plan in place when that is in your best interest
• Disclose transactions within 30 days when asked by you, a guardian, conservator, other fiduciary or a protective agency

Agent pay

The agent is entitled to reimbursement of reasonable expenses and to reasonable compensation unless the power of attorney says otherwise.

Law: SDCL 59-12-11

Asking a court to review an agent

You, the agent, a guardian, conservator or other fiduciary, your health care decision-maker, your spouse, parent or descendant, a presumptive heir, a beneficiary, a protective government agency, your caregiver, or a person asked to accept the power of attorney can ask a court to interpret it or review the agent's conduct. If you have capacity, the court must dismiss the petition at your request.

Law: SDCL 59-12-15

Law: SDCL 59-12-13

When it ends and how to revoke it

It ends when

• You die
• You become incapacitated, if the power of attorney is not durable
• You revoke it
• It says it ends (a date or event)
• The purpose of a limited or special power of attorney is accomplished
• The agent dies, becomes incapacitated or resigns, or you revoke the agent's authority, and no other agent is named
• A court appoints a conservator or other fiduciary to manage your property
• For an agent married to you: an action is filed for divorce, annulment, legal separation or a protection order, unless the power of attorney says otherwise

Divorce ends a spouse's authority

Yes · Divorce rules in South Dakota (Divorce Law Map)

How to revoke

You can revoke a power of attorney. The statute provides an optional Statutory Form Revocation of Power of Attorney, signed and acknowledged before a notary; it also revokes any guardian or conservator nominations in that power of attorney, but not a health care power of attorney. Signing a new power of attorney does not revoke an older one unless the new one says so.

Telling others

Deliver copies of the revocation right away to everyone who has a copy of the power of attorney. An agent or other person who acts in good faith without actual knowledge of the revocation is protected.

Law: SDCL 59-12-9(4)

Source: statutory revocation form

If it was recorded

SDCL 43-28-23 and 7-9-1 apply to a power of attorney or revocation to be recorded with the register of deeds.

Law: SDCL 59-12-41, 59-12-43

Law: SDCL 59-12-7(2), 59-12-9; SDCL 59-12-9, 59-12-43

Banks, other states and real estate

Banks and other businesses

Within 10 business days after a 'South Dakota compliant' power of attorney is presented, a person must accept it or ask for an agent's certification, translation or lawyer's opinion, then accept within 5 business days after receiving it. It cannot demand a different form. Refusal is allowed in listed cases, including good-faith doubt or a report to the Department of Social Services, Department of Human Services or police. Wrongful refusal can lead to a court order and liability for attorney's fees and costs.

Law: SDCL 59-12-18, 59-12-19

Source: substantially the statutory form and notarized

Signed in another state

A power of attorney signed outside South Dakota is valid in South Dakota if its signing followed the law of the state that governs it, or the federal military power of attorney rules.

Law: SDCL 59-12-5(3)

Real estate

If the power of attorney will be recorded with the register of deeds, SDCL 43-28-23 and 7-9-1 apply.

Law: SDCL 59-12-41

Health care directive in South Dakota

The document and its form

Document

Durable Power of Attorney for Health Care

Living will

Living Will Declaration

The living will is a separate document.

A living will tells your doctors about life-sustaining treatment if you are in a terminal condition, death is imminent and you can no longer communicate decisions. It must be signed by you (or by another at your direction) and witnessed by two adults or notarized, and it must state your wishes about artificial nutrition and hydration. A sample form is in the statute. If you have both a living will and a durable power of attorney, the later-signed document controls where they conflict.

Living will

Law: SDCL 34-12D-2, 34-12D-3, 34-12D-4, 34-12D-5

Signing rules

How to sign

Sign the durable power of attorney for health care (or have someone sign for you in your conscious presence at your direction), then have the signature witnessed by two other adults or by a notary public. The health care power of attorney law refers to SDCL 59-12-3, which makes a power of attorney survive your disability when it contains words showing that intent.

Who signs

Signed by you, or by another person you direct to sign your name in your conscious presence.

Notary

A notary or witnesses (your choice)

Witnesses

2 (instead of a notary)

Who cannot witness

Two other adults. The statute lists no other witness disqualifications.

Law: SDCL 59-7-2.1, 59-12-3

Who can be your agent and what the agent can do

Who cannot be your agent

Any other person; the statute lists no exclusions.

Law: SDCL 59-7-2.1

When the agent starts

The agent can decide whenever you lack capacity. The agent cannot decide when your attending physician has determined in good faith that you have decisional capacity.

Law: SDCL 59-7-2.1, 59-7-2.6

Decisions an agent cannot make

The agent must follow accepted medical standards and consider the doctor's recommendation, what you would decide and your best interest. The agent cannot authorize withholding comfort care, and can authorize withholding artificial nutrition or hydration only in listed situations (for example if you said so in the document or expressly authorized it). Life-sustaining treatment and nutrition must be given to a pregnant woman except in limited cases.

Law: SDCL 59-7-2.5, 59-7-2.7, 59-7-2.8

Revoking and conflicting documents

Revoking your agent

Chapter 59-7 does not set a specific method for revoking a health care power of attorney; a court's appointment of a guardian of your person ends it, though the guardian must follow your stated medical and end-of-life wishes.

Law: SDCL 59-7-11

Revoking your instructions

You can revoke a living will at any time and in any manner, whatever your mental or physical condition. The revocation is effective when communicated to the health care provider, who must put it in your medical record.

Law: SDCL 34-12D-8

Telling others

Tell your health care providers; a living will revocation takes effect when communicated to the provider.

Conflicting documents

If you have both a living will and a durable power of attorney, the later-signed document controls to the extent they conflict.

Law: SDCL 34-12D-4

Law: SDCL 34-12D-8, 59-7-11

If you have no directive

Who decides without a directive

If you have no durable power of attorney for health care or guardian of the person (or they are unavailable), health care decisions can be made by the first available person in this order. Before any court finding of incapacity, you can disqualify a family member in a signed document or by a note in your medical record made at your direction. A family member can delegate the decision to another family member in the same or a later class by a signed writing.

1. Your spouse, if not legally separated
2. An adult child
3. A parent
4. An adult sibling
5. A grandparent or adult grandchild
6. An adult aunt, uncle, cousin, niece or nephew
7. A close friend

Law: SDCL 34-12C-3

Other states, registry and medical orders

POLST (medical orders)

EMS Cardiopulmonary Resuscitation Directive

Law: SDCL ch. 34-12F

Guardianship and conservatorship in South Dakota

What guardianship or conservatorship is

What it is called

Guardian and conservator of a protected person; limited guardian or conservator; temporary guardian or conservator

When a court may appoint one

A guardian may be appointed for someone whose ability to respond to people, events and environments is so impaired that they cannot meet essential requirements for health, care, safety, habilitation or therapeutic needs without a guardian; a conservator for someone who cannot manage property or financial affairs or support themselves or dependents. Proof must be clear and convincing. The court must consider the person's limitations, maximum feasible self-reliance and independence, and the availability of less restrictive alternatives. The petition must include an evaluation report.

Law: SDCL 29A-5-302, 29A-5-303, 29A-5-306, 29A-5-312

Kinds

• Guardian
• Conservator
• Limited guardian or conservator
• Temporary guardian or conservator (up to 90 days, extendable 90 more)

Law: SDCL ch. 29A-5

Who can ask, which court and your own choice

Who may ask

The person alleged to need protection, an interested relative, the person or facility caring for them, the person they nominated as guardian or conservator, or any other interested person, including the Department of Human Services.

Law: SDCL 29A-5-305

Court

Circuit court in the county where the person lives or is present.

Choosing your own

You can nominate a conservator or guardian in a power of attorney or in a durable power of attorney for health care, or in any writing, orally to the court, or by other evidence. The court must follow your most recent nomination except for good cause or disqualification; if it does not appoint someone you designated in a power of attorney, it must give written findings.

Law: SDCL 59-12-7(1), 59-7-2.4, 29A-5-304

Effect on a power of attorney

If a court appoints a conservator or other fiduciary for your property, your financial power of attorney ends and the agent must account to the conservator and hand over your property. If a guardian of your person is appointed, your health care power of attorney ends, but the guardian must follow your stated medical and end-of-life wishes. Otherwise a guardian or conservator needs court approval to revoke or amend a durable power of attorney.

Law: SDCL 59-12-7(2); SDCL 59-7-11; SDCL 29A-5-118

Cost, fee waiver and forms

Filing fee

$72 total court costs for a guardianship ($25 filing fee + $40 court automation surcharge + $7 law library fee; covers all later papers in the case), South Dakota Unified Judicial System Guide to Filing Fees and Court Costs - Civil Filings, effective July 1, 2026.

Forms

• UJS Instructions for Guardian and Conservator Forms
• UJS Guardian and Conservator Frequently Asked Questions
• UJS Schedule of Court Costs (rev. July 1, 2026)

Steps

Steps

Other options and where to report abuse

Less restrictive options

• Less restrictive alternatives: The court must consider less restrictive alternatives and the person's maximum feasible self-reliance before appointing a guardian or conservator, and can limit the appointment.
• Power of attorney: An agent you choose handles money and property.
• Durable power of attorney for health care and living will: A health care agent and written end-of-life wishes.
• Family health care consent: Family members in a set order can make health care decisions without a court.

Report abuse or exploitation

Adult Protective Services (South Dakota Department of Human Services, Long Term Services and Supports)

Call or text the Eldercare Locator to find your local adult protective services: 1-800-677-1116 · eldercare.acl.gov

Good to know in South Dakota

• Unlike most Uniform Power of Attorney Act states, a South Dakota power of attorney is durable only if it says so.

  Law: SDCL 59-12-3

• A financial power of attorney must be notarized; a health care power of attorney needs two adult witnesses or a notary.

  Law: SDCL 59-12-4; SDCL 59-7-2.1

• Appointing a conservator ends your financial power of attorney, and appointing a guardian of the person ends your health care power of attorney.

  Law: SDCL 59-12-7, 59-7-11

• Since 2023 a living will must state your wishes about artificial nutrition and hydration.

  Law: SDCL 34-12D-2, SL 2023, ch 115

Questions about powers of attorney in South Dakota