House Bill 1204: The Uniform Power of Attorney Act: Week 6 Legislative Update

We have already reached week 6 of the 2018 South Dakota legislative session but we can’t let up yet! Some of our most important work happens in the final weeks of session.

With AARP South Dakota's support,  House Bill (HB) 1204, the Uniform Power of Attorney Act, fought back tough opposition to pass out of the House Judiciary committee on Wednesday with an 8-5 vote.  It will be up for consideration by the House of Representatives this coming Tuesday (Feb. 20).

Thank you to everyone who took action this week by  contacting the committee representatives and urging them to support the bill. This very important legislation will provide much needed guidelines and protections for South Dakotans using Powers of Attorney during life and estate planning.

The Uniform Power of Attorney Act (UPOAA) would provide improvements over current SD Power of Attorney law by:

1. Establishing a clear list of duties owed by the agent to the principal which will allow for simpler prosecution of agents who violate these duties.  Existing South Dakota law has no clear duties, so violations are ambiguous and difficult to prosecute.
2. Clarifing the rules for co-agents and successor agents which are not addressed in existing South Dakota law.
3. Imposing limits on agent compensation which is not addressed in existing South Dakota law.
4. Closing an exoneration loophole by negating the current provisions which allow dishonest agents to insert a clause into the Power of Attorney (POA) stating the agent is not responsible for violations.
5. Clarifying the requirements for an agent’s acceptance and resignation of duties, a process which is unclear under current SD law.
6. Including a list of potentially dangerous acts that an agent is not allowed to do unless the principal expressly grants that authority.

The UPOAA will:

1. Bring SD law into the 21^st century (parts of current law date to 1877).
2. Allow South Dakotans to use a simple and inexpensive process to give agents authority to act for them as part of an estate plan.
3. Protect vulnerable seniors from financial abuse.
4. Help law enforcement to prosecute dishonest agents.
5. Prevent unnecessary litigation by clarifying the rules.
6. Help South Dakotans who travel to others states ensure their POAs will be accepted.

The UPOAA will not:

1. Affect guardianship or conservatorship law in any way.
2. Affect powers of attorney for health care decisions – it only applies to POAs for financial transactions.
3. Put ANY new requirements or constraints on financial institutions.

AARP South Dakota needs our advocates to take action and contact their legislators in the House Representatives and tell them to vote YES on HB 1204 to enact the Uniform Power of Attorney Act! Please also ask you legislators about this issue when you see them in your community or at local legislative coffees this weekend.  Click here for a list of all upcoming cracker barrel events.