What are South Dakota Powers of Attorney and Living Wills?

Of course, your will does not take effect until your death.  However, other estate planning documents (known as “advanced directives”) may be useful during your lifetime.

A Durable Power of Attorney for Health Care is a document that you, as the “principal,” create by appointing another person, the health care “agent” or “attorney in fact,” to make health care decisions for you should you become incapable of making them yourself.  This type of power of attorney is “durable” because it is effective even if you become incapacitated.  It is important to note that your “agent” or “attorney in fact” does not need to be a licensed lawyer.  In fact, you can name anyone to serve in this role.   

A Living Will is a document that instructs your physician and other health care providers as to the circumstances under which you want life-sustaining treatment to be provided, withheld, or withdrawn.

Similar to a Durable Power of Attorney for Health Care, a Durable Power of Attorney (Financial) is a document that you, as the “principal,” create by appointing another person, the financial “agent” or “attorney in fact,” to make financial decisions for you should you become incapable of making them yourself.  Once again, it is important to note that your “agent” or “attorney in fact” does not need to be a licensed lawyer.  You can name anyone to serve in this role.   

You should resist the temptation to use “simple forms” that you may find in a book or on the Internet.  South Dakota has particular requirements for advanced directive documents.  You should work with your attorney to draft these documents so that they are valid in South Dakota.

Scott Swier
Founding Member, Attorney At Law