South Dakota Codified Laws 59-12-23. Authority that requires specific grant–Grant of general authority
(1) An agent under a power of attorney may do the following on behalf of the principal or with the principal’s property only if the power of attorney expressly grants the agent the authority and exercise of the authority is not otherwise prohibited by another agreement or instrument to which the authority or property is subject:
(a) Create, amend, revoke, or terminate an inter vivos trust;
Terms Used In South Dakota Codified Laws 59-12-23
- Annuity: A periodic (usually annual) payment of a fixed sum of money for either the life of the recipient or for a fixed number of years. A series of payments under a contract from an insurance company, a trust company, or an individual. Annuity payments are made at regular intervals over a period of more than one full year.
- 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
- Fiduciary: A trustee, executor, or administrator.
- Gift: A voluntary transfer or conveyance of property without consideration, or for less than full and adequate consideration based on fair market value.
- Inter vivos: Transfer of property from one living person to another living person.
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- 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
- Property: includes property, real and personal. See South Dakota Codified Laws 2-14-2
- Revocable trust: A trust agreement that can be canceled, rescinded, revoked, or repealed by the grantor (person who establishes the trust).
- Right of survivorship: The ownership rights that result in the acquisition of title to property by reason of having survived other co-owners.
(b) Make a gift;
(c) Create or change rights of survivorship;
(d) Create or change a beneficiary designation;
(e) Delegate authority granted under the power of attorney;
(f) Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan;
(g) Exercise fiduciary powers that the principal has authority to delegate;
(h) Exercise authority over the content of electronic communications, as defined in 18 U.S.C. § 2510(12) and as provided under chapter 55-19, which are sent or received by the principal; or
(i) Disclaim property, including a power of appointment.
(2) Notwithstanding a grant of authority to do an act described in subdivision (1), unless the power of attorney otherwise provides, an agent that is not an ancestor, spouse, or descendant of the principal, may not exercise authority under a power of attorney to create in the agent, or in an individual to whom the agent owes a legal obligation of support, an interest in the principal’s property, whether by gift, right of survivorship, beneficiary designation, disclaimer, or otherwise.
(3) Subject to subdivisions (1), (2), (4), and (5) of this section, if a power of attorney grants to an agent authority to do all acts that a principal could do, the agent has the general authority described in §§ 59-12-26 through 59-12-38.
(4) Unless otherwise provided by the power of attorney, a grant of authority to make a gift is subject to § 59-12-39.
(5) Subject to subdivisions (1), (2), and (4) of this section, if the subjects over which authority is granted in a power of attorney are similar or overlap, the broadest authority controls.
(6) Authority granted in a power of attorney is exercisable with respect to property that the principal has when the power of attorney is executed or acquires later, whether or not the property is located in this state and whether or not the authority is exercised or the power of attorney is executed in this state.
(7) An act performed by an agent pursuant to a power of attorney has the same effect and inures to the benefit of and binds the principal and the principal’s successors in interest as if the principal had performed the act.
(8) Notwithstanding the provisions of subdivision (1), an agent may amend, terminate, or revoke an inter vivos revocable trust only when the settlor is incapacitated or not reasonably available and to the extent expressly authorized by the power of attorney and by the terms of the governing trust instrument.
Source: SL 2020, ch 214, § 23.