Powers of Attorney

Powers of Attorney are an important part of any estate plan. While a will functions upon a person's death, powers of attorney are generally drafted to take effect upon a person's incapacity. Thus, powers of attorney help provide for the management of a person's affairs in a situation where they can no longer make those decisions themselves.

A power of attorney is a written agreement by which one person, as "principal," appoints another as his or her "agent" (or "attorney-in-fact") and gives the agent the authority to perform certain specified acts on behalf of the principal.

South Dakota law allows GPNA to draft "durable" powers of attorney. A "durable" power of attorney is one which is effective irregardless of any capacity the principal may experience. South Dakota law also permits a power that will become effective in the future at the time of disability. These are called "springing" durable posers of attorney. These kinds of powers of attorney can avoid the need for guardianships and conservatorships.

GPNA provides two types of powers of attorney: one for business and financial decisions and the other for health care decisions.

An advanced directive to physicians (also known as a "living will") is a document which provides instructions to an attending physician to withhold life sustaining procedures in the event of a terminal condition. GPGN provides for this direction within a health care power of attorney so that a separate Living Will is not necessary. Our clients have the ability to direct their agents as to their wishes regarding life sustaining procedures.

A durable power of attorney for health care is an instrument wherein a principal appoints another as an agent to make health care decisions where the principal is incapable of doing so or is incapable of communicating with the attending physician. A power of attorney for health care decisions only becomes operative upon incapacity. South Dakota law does not permit health care powers of attorney to become effective absent an incapacity or inability to communicate.