South Dakota Codified Laws 55-18-20. Limitations on representation of settlor–Limitations on settlor’s authority to bind beneficiary
A settlor may be represented by a representative in amending, terminating, or revoking an inter vivos revocable trust only when the representative is:
(1) An agent under a written power of attorney when the settlor is incapacitated or not reasonably available and to the extent expressly authorized by the power of attorney with specific reference to the trust and expressly authorized by the terms of the governing instrument; or
Terms Used In South Dakota Codified Laws 55-18-20
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Inter vivos: Transfer of property from one living person to another living person.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
- Revocable trust: A trust agreement that can be canceled, rescinded, revoked, or repealed by the grantor (person who establishes the trust).
- written: include typewriting and typewritten, printing and printed, except in the case of signatures, and where the words are used by way of contrast to typewriting and printing. See South Dakota Codified Laws 2-14-2
(2) A conservator only to the extent authorized or approved by order of the court pursuant to § 29A-5-420 or equivalent provisions of another jurisdiction‘s laws.
In other respects, a settlor may be represented by a representative only pursuant to subdivisions 55-18-9(5), (11), (16), and (17) and pursuant to subdivision 55-18-9(1) to the extent authorized or approved by the court.
A settlor may not bind a beneficiary with respect to a trust termination pursuant to § 55-3-24 or 55-3-30 or a trust modification pursuant to § 55-3-24 or 55-3-30 where the ability to bind the beneficiary to the proposed trust modification would constitute a retained interest pursuant to 26 U.S.C. § 2036, as of January 1, 2017, or a revocable transfer pursuant to 26 U.S.C. § 2038 as of January 1, 2017.
Source: SL 2017, ch 208, § 20; SL 2018, ch 275, § 39.