South Dakota: Power of Attorney Requirements

The short answer

South Dakota adopted the Uniform Power of Attorney Act effective July 1,
2020, codified at S.D. Codified Laws chapter 59-12. Under § 59-12-4, a
financial power of attorney "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," and "any signature under this
section shall be acknowledged before a notary public or other individual
authorized by law to take acknowledgments" — notarization is mandatory, not
a mere presumption booster. No witnesses are required. Unlike most UPOAA
states, South Dakota did not adopt default durability: a power of attorney
survives the principal's later incapacity only if the document contains
words like "This power of attorney shall not be affected by disability of
the principal" (§ 59-12-3).

Requirements one by one

Governing law

Financial powers of attorney are governed by the Uniform Power of Attorney
Act, SDCL chapter 59-12, enacted by 2020 S.D. Sess. Laws ch. 214 and
applicable to powers of attorney executed in South Dakota on or after July
1, 2020 (§ 59-12-5(1)). One executed before that date remains valid if it
complied with the law in effect at the time (§ 59-12-5(2)). The chapter
excludes health care decisions, powers coupled with a creditor's interest,
and a few other narrow categories (§ 59-12-2).

Who must sign

The principal signs the power of attorney. If the principal cannot sign,
another individual may sign the principal's name instead, but only "in the
principal's conscious presence" and at the principal's direction
(§ 59-12-4).

Notarization

Mandatory. Section 59-12-4 doesn't offer South Dakota's usual UPOAA-style
presumption-only option: "any signature under this section shall be
acknowledged before a notary public or other individual authorized by law to
take acknowledgments." Skipping notarization means the signature
requirement itself isn't satisfied.

Witnesses

None required by statute. Section 59-12-4 — South Dakota's execution
provision for a financial power of attorney — imposes no witness
requirement.

Statutory form

Yes, but optional. South Dakota publishes a fill-in-the-blank "Statutory
Form Power of Attorney" at § 59-12-41, with companion optional Agent's
Certification (§ 59-12-42) and Revocation (§ 59-12-43) forms. Any document
that satisfies § 59-12-4 is valid without using them.

Durable by default?

No — this is South Dakota's biggest departure from the modern UPOAA pattern.
Rather than making a power of attorney durable unless it says otherwise,
§ 59-12-3 requires the document to contain words showing the principal's
intent that the agent's authority survive incapacity — "This power of
attorney shall not be affected by disability of the principal," "This power
of attorney shall become effective upon the disability of the principal," or
similar language. Leave that language out, and the power of attorney ends
when the principal becomes incapacitated, just like an ordinary,
non-durable one.

Springing POA allowed?

Yes. A power of attorney "is effective when executed unless the principal
provides ... that it becomes effective at a future date or upon the
occurrence of a future event or contingency" (§ 59-12-8(1)) — typically
incapacity. The principal may name one or more people to determine in
writing that the event occurred (§ 59-12-8(2)). If no one is named, or the
named person is unwilling or unable to decide, a physician or licensed
psychologist makes the incapacity determination for the standard
"impairment" definition of incapacity, or an attorney at law, judge, or
appropriate government official makes it for the "missing, detained, or
outside the United States" definition (§ 59-12-8(3)).

Real estate extras

No mandatory recording requirement for validity. Section 59-12-41 notes that
"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" — meaning recording is
available, and if you choose it, the document must meet the same
general formatting rules (paper size, margins, a blank space for recording
information, a "prepared by" legend) that apply to any recorded real estate
instrument, not a special POA-specific rule.

Out-of-state POAs

Yes. A power of attorney "executed other than in this state is valid in
this state" if its execution complied with the law of the jurisdiction that
governs the power of attorney's meaning and effect, or with the federal
military power-of-attorney statute, 10 U.S.C. § 1044(b) (§ 59-12-5(3)).

What trips people up

• Durability isn't automatic here. Because South Dakota didn't adopt the
  default-durable rule most UPOAA states use, a power of attorney copied
  from another state's template — or one that simply omits the
  survives-disability language — can silently stop working exactly when the
  principal becomes incapacitated.
• Notarization is a validity requirement, not an option. Unlike states
  where an unnotarized signature is still valid (just less protected),
  South Dakota's § 59-12-4 folds acknowledgment into the signing
  requirement itself.
• Recording is available, not required. Because §§ 43-28-23 and 7-9-1
  only govern the format of a document that IS recorded, people sometimes
  assume South Dakota mandates recording a real-estate power of attorney —
  it doesn't; the rules simply apply if and when you choose to record.

Common questions

Do I need to get my South Dakota power of attorney notarized? Yes —
§ 59-12-4 requires every signature to be acknowledged before a notary public
or other person authorized to take acknowledgments; there's no unnotarized
option.

Does my South Dakota POA need witnesses? No. South Dakota's
financial-POA statute imposes no witness requirement.

Will an out-of-state power of attorney work in South Dakota? Yes, if it
was validly executed under the law that governs its meaning and effect —
usually the state named in the document, or the state of execution — under
§ 59-12-5(3).

Can I make my POA effective only if I become incapacitated? Yes, that's
a springing power of attorney under § 59-12-8. Name someone in the document
to certify the incapacity in writing; otherwise a physician or licensed
psychologist (or, in narrower cases, an attorney, judge, or government
official) makes that call instead.

Statutes and sources

All quotations are from the Uniform Power of Attorney Act as codified in the
South Dakota Codified Laws, and from the general register-of-deeds recording
statutes, accessed 2026-07-04.

• SDCL 59-12-2 — "This chapter applies to all powers of attorney other
  than: (1) A power to the extent it is coupled with an interest in the
  subject of the power, including a power given to or for the benefit of a
  creditor in connection with a credit transaction; (2) A power to make
  health care decisions; (3) A proxy or other delegation to exercise voting
  rights or management rights with respect to an entity; or (4) A power
  created on a form prescribed by a government or governmental subdivision,
  agency, or instrumentality for a governmental purpose."
  View official text (sdlegislature.gov)
• SDCL 59-12-3 — "If a principal designates another as the principal's
  agent by a written power of attorney which 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 the intent of the principal that the
  authority conferred is exercisable notwithstanding the principal's
  disability, the authority of the power of attorney is exercisable by the
  agent ... notwithstanding any later disability or incapacity of the
  principal ...."
  View official text (sdlegislature.gov)
• SDCL 59-12-4 — "A power of attorney 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. Any
  signature under this section shall be acknowledged before a notary public
  or other individual authorized by law to take acknowledgments."
  View official text (sdlegislature.gov)
• SDCL 59-12-5 — "A power of attorney executed other than in this state
  is valid in this state if, when the power of attorney was executed, the
  execution complied with: (a) The law of the jurisdiction that determines
  the meaning and effect of the power of attorney pursuant to § 59-12-6; or
  (b) The requirements for a military power of attorney pursuant to 10
  U.S.C. § 1044(b)."
  View official text (sdlegislature.gov)
• SDCL 59-12-8 — "A power of attorney is effective when executed unless
  the principal provides in the power of attorney that it becomes effective
  at a future date or upon the occurrence of a future event or contingency."
  View official text (sdlegislature.gov)
• SDCL 59-12-41 — "A document substantially in the following form may be
  used to create a statutory form power of attorney that has the meaning and
  effect prescribed by this chapter. 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."
  View official text (sdlegislature.gov)
• SDCL 43-28-23 — "Any real estate document recorded with the register
  of deeds, except for plats, shall: (1) Consist of one or more individual
  sheets measuring no larger than 8.5 inches by 14 inches and no smaller
  than 8.5 inches by 11 inches ...."
  View official text (sdlegislature.gov)
• SDCL 7-9-1 — "The register of deeds shall keep full and true records in
  proper books, of all deeds, mortgages, and other instruments authorized by
  law to be recorded in the register of deeds' office ...."
  View official text (sdlegislature.gov)