Power of Attorney Requirements in South Dakota

At a glance

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 — opt-in durability or disability-trigger wording. 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 59-12-42 — optional agent-certification form. View official text (sdlegislature.gov)
• SDCL 59-12-43 — optional statutory revocation form. 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)