The South Dakota Durable (Statutory) Power of Attorney Form is a testament to the importance of foresight in legal and personal matters.

This document, in its essence, is not just a collection of clauses and initials but a safeguard, ensuring a person’s wishes are upheld even when they’re unable to voice them.

By designating an agent, an individual ensures that their financial, personal, or property affairs are in trusted hands. Given the intricate fabric of our society, documents like these are no longer optional; they are a necessity.

They bridge the gap between legal requirements and personal wishes, offering protection to the principal, the agent, and other associated parties.

Designation Of Agent

Step 1: Name of Principal

 

Enter your full legal name.

This establishes your identity as the person granting the power of attorney, ensuring clarity in the agreement. Your name acts as an affirmation that you’re the one intending to transfer certain powers to someone else.

Example: John A. Doe

 

Step 2: Name of Agent

Input the full legal name of the person you wish to designate as your agent.

Naming an agent is the cornerstone of this form, as it identifies who will have the authority to act on your behalf. In most contexts, this person will have the right to make certain decisions in your stead, making it essential to identify them clearly.

Example: Mary B. Smith

 

Step 3: Agent’s Address

 

Write the agent’s current residential address.

This ensures that the agent can be located or contacted when needed, especially in legal scenarios.

An address provides a clear reference point and can be crucial for correspondence related to the powers you’re granting.

Example: 123 Liberty Lane, Rapid City, SD 57701

 

Step 4: Agent’s Telephone Number

 

Provide the agent’s primary contact number.

A phone number ensures immediate contact with the agent. In situations where urgent decisions might be necessary, or clarity is needed on an action taken by the agent, this contact number becomes invaluable.

Example: (605) 555-1234

Designation Of Successor Agent(S) (Optional)

 

Step 1: Name of Successor Agent

 

 

Input the full legal name of the person you wish to act as your backup agent, should the primary agent be unavailable.

Life can be unpredictable. Having a successor ensures continuity of your wishes, even if your primary agent can’t perform their role.

By designating a successor, you create a safety net.

Example: Robert C. Jones

 

Step 2: Successor Agent’s Address

 

 

State the successor agent’s current residential address.

Much like the primary agent’s address, this information helps keep communication channels open and ensures the successor can be reached when needed.

Example: 456 Freedom Drive, Sioux Falls, SD 57104

 

Step 3: Successor Agent’s Telephone Number

 

List the successor agent’s primary contact number.

Keeping in touch is paramount. Having the successor agent’s contact ensures that they can be swiftly reached if they ever need to step into the primary agent’s role.

Example: (605) 555-5678

 

Step 4: Name of Second Successor Agent

 

 

Input the full legal name of another backup agent.

Think of this as a triple assurance. In the off chance both the primary and first successor agents can’t act, you still have someone you trust to step in, ensuring your interests are always protected.

Example: Natalie D. Brown

 

Step 5: Second Successor Agent’s Address

 

 

Mention the second successor agent’s current residential address.

Every agent or successor listed should have identifiable contact details. This continues the theme of clear communication and ensuring roles can be executed without hitches.

Example: 789 Unity Street, Pierre, SD 57501

 

Step 6: Second Successor Agent’s Telephone Number

 

Record the second successor agent’s primary phone number.

This furthers your safety net. It’s always prudent to ensure every line of communication is available if a successor needs to be contacted.

Example: (605) 555-9012

 

Grant Of General Authority

 

This section is fundamental as it specifies how you empower your agent to act on your behalf.

By granting authority in these subjects, you allow your agent to make decisions, manage, or transact in these areas for you.

 

Step 1: Real Property (§ 59-12-26)

 

This pertains to immovable properties like land and anything attached to it, such as houses. Granting authority here enables your agent to handle matters related to buying, selling, or managing real estate on your behalf.

Example: If you’re traveling and need someone to manage the sale of your house, your agent can oversee the process, from listing to closing.

 

Step 2: Tangible Personal Property (§ 59-12-27)

 

This includes movable properties like vehicles, jewelry, furniture, and art pieces. Your agent can manage, sell, or buy such items for you by marking this.

Example: You inherited antique furniture, and your agent can help auction it if unavailable.

 

 

Step 3: Stocks and Bonds (§ 59-12-28)

 

By initialing here, you provide authority over your securities. Your agent can buy, sell, or manage your stock and bond investments.

Example: If there’s an opportunity in the stock market, your agent can capitalize on it, ensuring you don’t miss out while away.

 

 

Step 4: Commodities and Options (§ 59-12-29)

 

This pertains to raw materials and contracts that allow (but not obligate) the buying/selling of assets. Granting this authority means your agent can trade commodities or options for you.

Example: Prices of gold are predicted to skyrocket; your agent can buy gold options on your behalf.

 

 

Step 5: Banks and Other Financial Institutions (§ 59-12-30)

 

Initialing here gives your agent power over your bank accounts, allowing them to deposit, withdraw, or manage your finances.

Example: You have bills that need paying while you’re out of town; your agent ensures they’re paid on time.

 

 

Step 6: Operation of Entity or Business (§ 59-12-31)

 

If you own a business, this grants your agent authority to oversee and manage its operations in your stead.

Example: Your restaurant needs oversight while you’re on a sabbatical; your agent steps in.

 

Step 7: Insurance and Annuities (§ 59-12-32)

 

Your agent can handle insurance claims, purchase annuities, or manage existing ones if you grant this authority.

Example: After an unforeseen event, your agent files an insurance claim, ensuring a smooth process.

 

Step 8: Estates, Trusts, and Other Beneficial Interests (§ 59-12-33)

 

 

This gives power over managing trusts or estate matters you might be involved in.

Example: You wish to set up a trust for your grandchild; your agent can handle the paperwork.

 

Step 9: Claims and Litigation (§ 59-12-34)

 

By marking this, your agent can represent you in legal matters, from filing claims to defending you.

Example: A tenant is causing issues, and your agent handles eviction.

 

 

Step 10: Personal and Family Maintenance (§ 59-12-35)

 

This allows your agent to make personal and family care decisions, like health decisions or educational choices.

Example: Your child needs to choose a school, and your agent helps with the enrollment.

 

 

Step 11: Benefits from Governmental Programs or Civil or Military Service (§ 59-12-36)

 

Your agent can manage or apply for benefits from governmental programs or services for you.

Example: You’re entitled to veterans’ benefits; your agent ensures the proper filing and collection.

 

Step 12: Retirement Plans (§ 59-12-37)

 

This gives your agent control over your retirement plans, such as 401(k) or IRAs.

Example: Market dynamics change, and your agent shifts your 401(k) investments accordingly.

 

 

Step 13: Taxes (§ 59-12-38)

 

Your agent can file taxes, claim returns, or handle any tax-related matters on your behalf.

Example: It’s tax season, and your agent files your returns while you’re abroad.

 

 

Step 14: All Preceding Subjects (§§ 59-12-26 through 59-12-38)

 

Instead of initialing each subject individually, this option is a catch-all, granting your agent authority in all the above categories.

Example: You want a comprehensive power of attorney, granting complete authority in all fields, so you opt for this.

 

Every decision you make here is a testament of trust, making it vital to choose carefully and understand each field’s implications.

Grant Of Specific Authority (Optional)

 

In contrast to the general powers discussed earlier, this section delves deeper, highlighting specific actions an agent could take.

These are weighty decisions, possibly altering your financial landscape or affecting posthumous distribution of assets.

Hence, it’s paramount to understand each specific authority and deliberate thoroughly before initialing.

 

Step 1: Create an inter vivos trust or amend, revoke, or terminate a trust

 

This grants your agent the right to set up a trust while you’re alive or modify an existing one.

Example: You have a substantial amount of assets, and to ensure their proper management and future allocation, your agent establishes an inter vivos trust.

 

 

Step 2: Make a gift, subject to the limitations of § 59-12-39

 


This allows your agent to gift assets on your behalf, but within the limits defined by the mentioned section and any specific instructions in your power of attorney.

Example: For tax reasons or goodwill, your agent might donate a part of your assets to a charitable institution.

 

 

Step 3: Create or change rights of survivorship

 


This pertains to assets co-owned, where the survivor inherits the other’s share upon their demise.

Example: You co-own property with a sibling. Your agent can change the terms so that if one of you passes away, the property entirely belongs to the survivor.

 

Step 4: Create or change a beneficiary designation

 

 

This power allows your agent to name or alter specific asset or policy beneficiaries.

Example: You purchased life insurance. Your agent can update beneficiaries, ensuring the policy’s proceeds go to the intended individuals upon your death.

 

Step 5: Authorize another

 

Essentially, this lets your agent delegate their powers to someone else.

Example: Your primary agent might be unavailable for a period, so they delegate their powers temporarily to a trusted individual.

 

 

Step 6: Waive the principal’s right to be a beneficiary 

 

This could mean relinquishing your right to benefits from annuities or retirement plans designed to benefit survivors.

Example: You’re a beneficiary in a friend’s retirement plan. This authority would let your agent forfeit those benefits.

 

 

Step 7: Exercise fiduciary powers that the principal has the authority to delegate

 

A fiduciary duty is a legal obligation to act in another’s best interest. This power allows your agent to execute any fiduciary responsibilities you might hold.

Example: As a trustee of a charitable fund, you have fiduciary duties. Your agent could perform these on your behalf if needed.

 

Step 8: Access the content of electronic communications

 

 

This gives your agent the right to access your electronic communications, such as emails or messages.

Example: Your agent can access the relevant information for any legal or financial matters discussed over email.

 

Step 9: Disclaim or refuse an interest in the property, including a power of appointment

 


This grants your agent the power to decline assets or property you might inherit or be appointed.

Example: A distant relative bequeaths property to you, but owing to attached liabilities, your agent might decide it’s in your best interest to decline.

 

Treading carefully is advisable when considering these specific powers.

They have the potential to restructure your assets and financial landscape. Always prioritize understanding over expediency.

Special Instructions (Optional)

 

This section allows you to provide clarity on when your agent’s power comes into effect and under what conditions it remains operational.

Providing directives that align with your desired timeline and circumstances is pivotal.

 

Step 1: Authority begins immediately and persists despite incapacity


By initialing here, you’re granting your agent immediate powers, and these remain unaltered even if you’re incapacitated later.

Example: You may want someone to manage your affairs while you’re away and want that authority to persist even if unforeseen health issues arise.

 

Step 2: Authority starts only upon your incapacity

 


Initialing here reserves the agent’s powers until you’re deemed incapacitated.

Example: You’re currently confident in managing your matters but desire a backup if health complications render you incapable.

 

 

Step 3: Authority is immediate but ends if you’re incapacitated

 


This immediately starts the agent’s powers but revokes them if you face incapacity.

Example: You might need assistance now, but in the event of incapacity, prefer decisions move to a legally designated person.

 

The following lines are for any other specific directions you’d want to leave for your agent.

Step 4: Nomination Of Conservator And/or Guardian

 

This section is vital. If a court sees the need to appoint someone to manage your assets (conservator) or personal matters (guardian), your preference matters.

By nominating someone, you’re giving the court an insight into your choice.

Example: To ensure your child is cared for by a close relative rather than being placed under state care, you nominate that relative as their guardian.

Step 5: Reliance On This Power Of Attorney

 

This clause reassures individuals, including your agent, that they can depend on the document’s authenticity unless they know its termination or invalidity.

Step 6: Signature And Acknowledgment

 

Arguably the most important part, your signature legitimizes the document, making it legally binding. Also, the date ensures there’s clarity on when the document was executed.

The subsequent details further affirm your identity, connecting you to the document.

Finally, the notary public’s acknowledgment is protective, ensuring the principal signed the document willingly and wasn’t under duress.

Their stamp and signature add another layer of authenticity.

Example: Suppose you sign the power of attorney in 2023. By 2025, you decide on changes. The dated signature helps differentiate the versions and determine which is current.

 

 

Conclusion

 

In conclusion, the South Dakota Durable (Statutory) Power of Attorney Form serves as a critical safeguard, empowering you to protect your interests even when incapacity strikes.

Appointing someone you trust provides assurance that your affairs will remain in competent hands.

While difficult to consider, proper preparation of this document is essential to secure your future.