South Dakota Codified Laws 59-6-11. Durable Power of Attorney–Presumption–Liability–Exceptions
A durable power of attorney for health care designated under the provisions of § 59-7-2.1 is presumed valid. Another person may rely on the presumption of validity unless the person has actual knowledge that the power was not validly executed or that the power was revoked.
Except as provided in this section, any person who refuses to accept the authority of the agent to exercise a power granted under the durable power of attorney for health care is liable to the principal and to the principal’s heirs, assigns, and the personal representative or successor in interest of the principal’s estate in the same manner as the person would be liable had the person refused to accept the authority of the principal to act on the principal’s own behalf. The person found liable for refusing to accept the authority of an agent is liable for damages and costs, including reasonable attorney’s fees.
Terms Used In South Dakota Codified Laws 59-6-11
- Common law: The legal system that originated in England and is now in use in the United States. It is based on judicial decisions rather than legislative action.
- Damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
- Person: includes natural persons, partnerships, associations, cooperative corporations, limited liability companies, and corporations. See South Dakota Codified Laws 2-14-2
- 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
A person who refuses to accept the authority of an agent to exercise a power granted under a durable power of attorney for health care is not liable pursuant to this section if:
(1) The person has actual knowledge of the revocation of the durable power of attorney before the exercise of the power;
(2) The duration of the durable power of attorney specified in the durable power of attorney has expired;
(3) The person has actual knowledge of the death of the principal;
(4) The person reasonably believes that the durable power of attorney is not valid under the law of this state;
(5) The person reasonably believes that the durable power of attorney does not grant the agent authority to perform the transaction requested; or
(6) The person reasonably believes that a course of conduct or refusal to act as proposed by the agent is contrary to the wishes of the principal as expressed to the person.
This section does not negate the liability that a person would have to the principal or the agent under another form of power of attorney, under the common law, or otherwise.
Source: SL 2004, ch 312, § 2; SL 2020, ch 214, § 50.