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South Dakota Durable Power of Attorney Laws

A durable power of attorney is a document that gives someone else, such as a trusted relative or friend, the authority to make certain decisions and act on your behalf. The person to whom you give these powers is called an "agent" or "attorney-in-fact." You are called the "principal."

It is a written document that remains valid even if you should later become unable to make your own decisions. With a durable power of attorney, you are able to:

  • Appoint an agent to manage your financial affairs;
  • Make health care decisions; or
  • Conduct other business for you during your incapacitation.

Durable Power Of Attorney Laws in South Dakota

In the state of South Dakota, one of the most important parts of creating a durable power of attorney is choosing an agent. The agent is the person you choose to carry out the duties you have outlined in the durable power of attorney.

The agent should be someone you trust to carry out your wishes, someone who will not take advantage of you when you are incapacitated, and someone who is willing to serve as your agent. The agent is usually a family member or a friend, but you can choose anyone.

Other acts an agent may perform once authorized include:

  • Make healthcare decisions for you or your minor children;
  • Life sustaining procedures;
  • Buy or sell things;
  • Manage a business;
  • Collect debts ;
  • Invest money;
  • Cash checks;
  • Manage financial matters generally;
  • Sue on behalf of the principal.

Living Wills and Advance Directives

If a patient wants life-sustaining procedures withheld or withdrawn if death from an incurable, terminal condition is imminent, then it is a good idea to write it down in what is called a living will or an advance directive.

For What Period of Time is a Durable Power of Attorney For Health Care Effective?

A Durable Power of Attorney for Health Care is effective until revoked or death occurs. At least every two (2) years, the document should be reviewed to ensure the individual appointed and the health care decisions expressed are still appropriate.

The basics of South Dakota's durable power of attorney laws are highlighted below. See Wills and Durable Power of Attorney for Health Care for a general overview.

Code Section 59-7-2.1, et seq. Termination of Agency
Specific Powers, Life-Prolonging Acts Any health care decisions for principal which principal could have made if s/he had decisional capacity including rejection or withdrawal of consent for medical procedures, treatment, or intervention. Agent may not authorize withholding artificial nutrition and hydration for comfort care or pain relief. Artificial nutrition or hydration may be withheld under certain circumstances or if specifically authorized.
Legal Requirements for Durable Power of Attorney

Specific intent must be included in document for durable power of attorney to extend even when principal is disabled but life-sustaining treatment must be given to a pregnant woman unless live birth unlikely to a reasonable degree of medical certainty.

Revocation of Durable Power of Attorney Revocation must be recorded with register of deeds
Immunity for Attending Physician No civil, criminal, or professional liability for physician acting in good faith on a health care decision by agent or attorney-in-fact.

Note: State laws are constantly changing -- contact a South Dakota estate planning attorney or conduct your own legal research to verify the state law(s) you are researching.

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