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;
(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.
Structure South Dakota Codified Laws
Chapter 12 - Uniform Power Of Attorney Act
Section 59-12-1 - Definitions.
Section 59-12-2 - Applicability.
Section 59-12-3 - Durable power of attorney.
Section 59-12-4 - Execution of power of attorney.
Section 59-12-5 - Validity of power of attorney.
Section 59-12-6 - Meaning and effect of power of attorney.
Section 59-12-8 - When power of attorney is effective.
Section 59-12-9 - Termination of power of attorney or agent's authority.
Section 59-12-10 - Coagents and successor agents.
Section 59-12-11 - Reimbursement and compensation of agent.
Section 59-12-12 - Agent's acceptance.
Section 59-12-13 - Agent's duties.
Section 59-12-14 - Exoneration of agent.
Section 59-12-15 - Judicial relief.
Section 59-12-16 - Agent's liability.
Section 59-12-17 - Agent's resignation--Notice.
Section 59-12-18 - Acceptance of and reliance upon acknowledged power of attorney.
Section 59-12-19 - Liability for refusal to accept acknowledged power of attorney.
Section 59-12-20 - Principles of law and equity.
Section 59-12-21 - Laws applicable to financial institutions and entities.
Section 59-12-22 - Remedies under other law.
Section 59-12-23 - Authority that requires specific grant--Grant of general authority.
Section 59-12-24 - Incorporation of authority.
Section 59-12-25 - Construction of authority generally.
Section 59-12-26 - Real property.
Section 59-12-27 - Tangible personal property.
Section 59-12-28 - Stocks and bonds.
Section 59-12-29 - Commodities and options.
Section 59-12-30 - Banks and other financial institutions.
Section 59-12-31 - Operation of entity or business.
Section 59-12-32 - Insurance and annuities.
Section 59-12-33 - Estates, trusts, and other beneficial interests.
Section 59-12-34 - Claims and litigation.
Section 59-12-35 - Personal and family maintenance.
Section 59-12-36 - Benefits from governmental programs or civil or military service.
Section 59-12-37 - Retirement plans.
Section 59-12-40 - Effect on existing powers of attorney.
Section 59-12-41 - Statutory form--Power of attorney.