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Power of Attorney in South Dakota: Notary Rule, Durability and the Statutory Form
A South Dakota power of attorney must be notarized, and it keeps working through incapacity only if it says so. Here is what the Uniform Power of Attorney Act, SDCL chapter 59-12, requires.
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What to know
- A South Dakota power of attorney must be signed by your parent, or by someone in their conscious presence at their direction, and the signature must be acknowledged before a notary (SDCL 59-12-4).
- It's durable only if it contains words showing that intent, such as "This power of attorney shall not be affected by disability of the principal" (SDCL 59-12-3).
- A bank must accept a notarized power of attorney substantially in the statutory form, or ask for more information, within ten business days.
- The statutory form "does not authorize the agent to make health-care decisions"; that takes a separate durable power of attorney for health care.
- Retirement Checklist turns your parent's situation into a short, ordered plan, so the power of attorney sits in the right place among everything else.
A South Dakota power of attorney must be signed by your parent and acknowledged before a notary, and it survives incapacity only if it contains durability wording; the statutory form is in SDCL 59-12-41. Under SDCL 59-12-4, it "shall be signed by the principal or in the principal's conscious presence by another individual directed by the principal to sign the principal's name on the power of attorney." The same section adds: "Any signature under this section shall be acknowledged before a notary public or other individual authorized by law to take acknowledgments." These rules apply to powers of attorney created on or after July 1, 2020.
What is a durable power of attorney in South Dakota?
A durable power of attorney in South Dakota is one "not terminated by the principal's incapacity," and it's durable only if the document says so. The law is the Uniform Power of Attorney Act, SDCL chapter 59-12, where a power of attorney is "a writing or other record that grants authority to an agent to act in the place of the principal." Your parent is the principal.
Durability isn't automatic. Under SDCL 59-12-3, the authority continues despite your parent's later incapacity when the document contains the words "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. A power of attorney that isn't durable ends when your parent becomes incapacitated. For reasons to set one up early, see our guide to power of attorney for an elderly parent.
What does South Dakota require for a power of attorney to be valid?
A power of attorney signed in South Dakota is valid if your parent signs it, or directs someone to sign in their conscious presence, and the signature is acknowledged before a notary (SDCL 59-12-4 and 59-12-5). Durability wording is a separate requirement for it to survive incapacity.
| Step | What the law says | Why it matters |
|---|---|---|
| Signature | Signed by your parent, or by someone in their conscious presence at their direction | Required (59-12-4) |
| Notary | The signature "shall be acknowledged before a notary public or other individual authorized by law to take acknowledgments" | Required (59-12-4), and part of the bank-acceptance rule (59-12-18) |
| Durability wording | Words showing the authority survives incapacity | Without them, the power ends on incapacity (59-12-3, 59-12-9) |
Section 59-12-4 doesn't mention witnesses, and the statutory form ends with a notary acknowledgment and no witness lines. A narrow exception lets a power of attorney used only to transfer a vehicle title to an insurer skip the notary.
Is there an official South Dakota power of attorney form?
Yes. SDCL 59-12-41 prints the "STATUTORY FORM POWER OF ATTORNEY," and "A document substantially in the following form may be used." The statute also prints an optional agent's certification and a statutory revocation form.
The form's notice explains that it "authorizes another person (your agent) to make decisions concerning your property for you (the principal)," that "This power of attorney does not authorize the agent to make health-care decisions for you," and that "Your agent is entitled to reasonable compensation unless you state otherwise in the Special Instructions." Its Special Instructions offer three lines to initial: effective immediately and "shall not be affected by disability of the principal"; effective only on later incapacity; or effective immediately but ending on later incapacity. Given South Dakota's durability rule, that choice matters.
Some powers need their own initials. Under SDCL 59-12-23, an agent can create or change trusts, make gifts, create or change survivorship rights or beneficiary designations, and take several other listed steps "only if the power of attorney expressly grants the agent the authority." The form cautions that granting them "could significantly reduce your property or change how your property is distributed at your death."
When does it take effect, and when does it end?
It's "effective when executed" unless it says it starts at a future date or event (SDCL 59-12-8). If it starts on incapacity and no one is named to decide, a written determination by a physician or licensed psychologist, or in some cases an attorney, judge or government official, triggers it.
Under SDCL 59-12-9, it ends when your parent dies, revokes it, becomes incapacitated if it isn't durable, when the document says it ends or its purpose is accomplished, or when the agent can no longer serve and no other agent is named. An agent's authority also ends, unless the document says otherwise, when "An action is filed for divorce or annulment of the agent's marriage to the principal, or for their legal separation, or for a protection order." That's the filing, not the final decree.
Two more rules matter. If a court later appoints a conservator for your parent's property, "the power of attorney is terminated" (SDCL 59-12-7). And if your parent names co-agents, "the concurrence of a majority is required on all acts" unless the document says otherwise.
What does the agent have to do?
Under SDCL 59-12-13, whatever the document says, an agent must act according to your parent's reasonable expectations as known to the agent, otherwise in their best interest, in good faith, and only within the authority granted. Unless the document says otherwise, the agent must also act loyally, avoid conflicts, act with care and diligence, and "Keep an accurate and contemporaneous record of any receipt, disbursement, and transaction made on behalf of the principal."
If your parent, a guardian, a conservator or a protective government agency asks for those records, the agent has thirty days to comply or explain why more time is needed. The statutory form warns agents: "If the principal is 65 years of age or older, or an adult with a disability, you could also be prosecuted for elder abuse and financial exploitation." Our guide to protecting a parent from scams covers the warning signs any agent should know.
Do banks have to accept a South Dakota power of attorney?
Yes, on a clock, if it is "South Dakota compliant," unless one of the statute's listed exceptions applies. That term means a power of attorney "signed by the principal and substantially in the form provided in § 59-12-41 and acknowledged before a notary public." Under SDCL 59-12-19, a person must accept it or request an agent's certification, a translation or an opinion of counsel within ten business days of presentation, then accept "no later than five business days after receipt" of what they asked for. "A person may not require an additional or different form of power of attorney for authority granted in the power of attorney presented."
The statute lists reasons a bank can still refuse, such as a good-faith belief the power isn't valid or a report of suspected abuse or exploitation to state agencies or law enforcement. A 2026 law, SDCL chapter 51A-19, also lets a financial institution that reasonably believes a senior or vulnerable adult is being exploited "Refuse to comply with instructions given to the financial institution by an agent" under a power of attorney. Under SDCL 51A-19-5 that authority ends after thirty business days, sooner if the institution is satisfied or a court ends it, and the institution can extend it if it reasonably believes the exploitation may continue.
Does a South Dakota power of attorney need to be recorded?
No. The signing and validity rules in SDCL 59-12-4 and 59-12-5 don't include recording, but the statute plans for real estate. Each statutory form section says: "The provisions of §§ 43-28-23 and 7-9-1 apply to any power of attorney that is to be recorded with the register of deeds." Those sections set format standards for recorded documents and require a "prepared by" legend with the preparer's name, address and telephone number. If your parent owns real estate, it's worth preparing the document to those standards from the start.
How do you get a power of attorney for an elderly parent in South Dakota?
Your parent makes it, signing before a notary while they're still able to sign. The steps:
- Talk with your parent about who they'd want acting for them, and who should succeed them.
- Choose a document: the statutory form, or one drafted for your parent's situation.
- Go through the subjects with your parent; they initial only what they want to grant, including any specific powers such as gifts.
- Your parent decides about durability and initials the matching Special Instructions line.
- Your parent signs and acknowledges it before a notary, and the agent gets a copy.
Timing matters because your parent has to be able to sign. If that moment has passed, the family may need a court process instead, described in conservatorship and guardianship. If the situation is complicated, it helps to know what an elder law attorney does.
How do you revoke a power of attorney in South Dakota?
Your parent can revoke the power of attorney or an agent's authority under SDCL 59-12-9, and SDCL 59-12-43 prints a statutory revocation form with a notary block. That form tells your parent, "You should immediately deliver copies of this revocation to any person, institution, or company" that has a copy of the original. People who act in good faith without "actual knowledge" of the termination are protected, so getting the revocation to everyone matters.
Signing a new power of attorney doesn't cancel an older one unless the new one says so.
How much does a power of attorney cost in South Dakota?
The statutory form is printed in the law and free to use. South Dakota no longer caps notary fees: a 2025 law was "An Act to remove the maximum fee permitted to be charged by a notary," and SDCL 18-1-9 now says a notary "may charge and receive a fee for each instrument notarized," with no maximum. The Secretary of State's notary handbook says the same, so ask the notary about the fee in advance.
Frequently asked questions
Does a power of attorney need to be notarized in South Dakota?
Yes. Under SDCL 59-12-4, your parent's signature on a power of attorney must be acknowledged before a notary or another official authorized to take acknowledgments. The section doesn't require witnesses. A notarized power of attorney substantially in the statutory form also triggers the ten-business-day rule for banks and other third parties.
Is a South Dakota power of attorney durable?
Only if it says so. Under SDCL 59-12-3, the authority survives your parent's later incapacity when the document contains words such as "shall not be affected by disability of the principal" or similar words showing that intent. Without them, the power ends when your parent becomes incapacitated. The statutory form has a line to initial for this.
Where can I get a South Dakota power of attorney form?
The South Dakota Statutory Form Power of Attorney is printed in SDCL 59-12-41, on the Legislature's website. Using it is optional; a document drafted for your parent's situation also works. A notarized document substantially in the statutory form is what the bank-acceptance deadline covers, and the statute also prints a revocation form and an agent's certification.
Can a South Dakota power of attorney make medical decisions?
No. Chapter 59-12 doesn't apply to "A power to make health care decisions," and the statutory form says so. South Dakota uses a separate durable power of attorney for health care under SDCL 59-7-2.1, signed before two adult witnesses or a notary. Our guide to South Dakota's living will and health care power of attorney explains it.
What happens if a court appoints a conservator?
In South Dakota, the power of attorney ends. Under SDCL 59-12-7, if a court appoints a conservator or other fiduciary to manage some or all of your parent's property after they sign, the power of attorney is terminated, and the agent must account to the conservator and hand over property. Your parent can nominate a conservator in the document.
Is a power of attorney from another state valid in South Dakota?
Yes, if it met the right law when signed. Under SDCL 59-12-5, a power of attorney executed outside South Dakota is valid there if it complied with the law of the jurisdiction that governs its meaning, or with the federal requirements for a military power of attorney. The bank deadline covers only documents substantially in South Dakota's form.
Getting started
A power of attorney is time-sensitive, because it needs your parent's signature while they can still give it, and in South Dakota it needs a notary and durability wording to keep working through incapacity. The plan this site builds asks four questions, including which state your parents live in, and puts the handful of steps that matter most for your family in order. It's free and takes about 90 seconds.
Related guides
Sources
- South Dakota Codified Laws chapter 59-12, Uniform Power of Attorney Act: durability (59-12-3), execution (59-12-4), validity (59-12-5), conservators (59-12-7), effective date (59-12-8), termination (59-12-9), duties (59-12-13), acceptance (59-12-18 and 59-12-19), express grants (59-12-23) and the statutory forms (59-12-41 to 59-12-43); published by the Legislative Research Council.
- South Dakota Codified Laws chapter 51A-19, Financial Exploitation Prevention: when a financial institution may refuse an agent's instructions.
- South Dakota Codified Laws chapter 18-1, Notaries Public: notary fees (18-1-9).
- South Dakota Secretary of State, Notary Public Handbook: notary fees and electronic notarization.
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