Disclaimer
This article provides general information only and does not constitute legal advice. Always consult a qualified South Dakota attorney for guidance on your specific situation.
Detailed Answer
When an elderly heir can no longer manage personal or financial affairs, South Dakota law offers two primary options: a power of attorney and guardianship.
1. Power of Attorney
A power of attorney (POA) is a legal document in which a principal grants an agent authority to act on their behalf. South Dakota recognizes both general POA and durable POA. Under SDCL § 59-12-1 et seq., a durable POA remains effective even if the principal becomes incapacitated.
Key features of POA:
- Scope: You can limit the agent’s powers to specific tasks (e.g., banking, real estate) or grant broad authority.
- Durability: A durable clause ensures continuity if the principal loses capacity.
- Revocation: The principal may revoke the POA at any time if mentally competent.
2. Guardianship
If the elderly individual lacks capacity and did not execute a POA, interested parties can petition the circuit court for guardianship under SDCL § 29A-5-101 et seq.. Guardianship grants the guardian authority over personal care, medical decisions, and/or estate management.
Key steps in guardianship:
- Filing a petition: A family member or public fiduciary files in the county where the individual resides.
- Capacity evaluation: A court-appointed physician or psychologist assesses capacity.
- Notice and hearing: The court notifies the proposed ward and holds a guardianship hearing.
- Court order: The judge issues an order defining the guardian’s powers and reporting duties.
Helpful Hints
- Plan ahead: Encourage an elderly heir to execute a durable POA while still mentally competent.
- Choose a trusted agent: Select someone reliable, organized, and familiar with finances.
- Limit authority: Use specific powers to reduce risk of misuse.
- Review periodically: Confirm that the POA remains up to date and reflects current wishes.
- Consider alternatives: Look into advance directives and health care directives for medical decisions.
- Consult an attorney: A lawyer can draft documents that comply with South Dakota law and local court rules.