In the state of South Carolina, power of attorney (POA) laws are found in the state’s Probate Code. A durable power of attorney is one that is not terminated by the incapacity of the principal, the person who grants the power.
Incapacity is defined as having one’s decision-making abilities temporarily or permanently affected. For example, a person in a coma would be incapacitated.
In South Carolina, a POA is durable unless the power expressly provides that it will terminate with the incapacity of the principal. A durable POA expires upon the principal’s death. The agent, or attorney-in-fact, is the person to whom the power of attorney is conferred.
Establishing Power of Attorney
In order to establish a power of attorney, the principal must sign the document conferring the power. Alternatively, another individual who is in the presence of the principal and is directed by the principal can sign the principal’s name to the power of attorney document.
The document can be a power of attorney form or another document that contains all of the necessary information for a valid POA.
A POA must contain:
- Name of the principal.
- Name of the agent.
- Date the power was executed.
- Names of the witnesses.
Formalities of a POA
A power of attorney is a legal document that must be completed with the same formality and the same requirements as to witnesses as does a will in South Carolina.
This means that at least two people must witness the principal signing the POA, or the principal’s acknowledgment of the signature of another person who signs it in the principal’s presence and at the principal’s direction.
Alternatively, the witnesses can witness the principal’s acknowledgement of the POA. The witnesses to a POA must be disinterested, meaning that they cannot be the agent to whom the POA is conferred nor can they receive a benefit because that agent is named in the POA.
POA Must Be Proven Pursuant to South Carolina Law
The POA must be acknowledged, or proved, pursuant to South Carolina Code of Laws, Section 30-5-30. This means that the document conferring the power must be acknowledged by a notary public or a justice of the peace.
Both officials append their official seals to the certificate of acknowledgment or proof. A POA is valid on the day it is executed, or signed, by the principal.
Powers Granted by POAs
With a POA, an agent can take a number of actions to benefit the principal, including:
- Preserve the principal’s estate plan to the extent actually known by the agent.
- File the principal’s taxes
and attend to tax matters. Handle the principal’s insurance policies. Manage the principal’s bank accounts. Accept payments on behalf of the principal’s estate.
Cooperate with a person with authority to make health care decisions for the principal to the extent actually known by the agent.
Restrictions on Agent Authority
There are certain actions an agent with a POA may not take unless the POA expressly grants the agent the authority to do so.
When the agent exercises such authority, it may not be prohibited by another agreement or instrument to which the authority is subject, such as another contract of the agent.
The actions an agent generally may not take include:
- Creating, amending, revoking or terminating a trust.
- Making a gift.
- Creating or changing a beneficiary designation. A beneficiary is someone set to receive property under the principal’s will or trust.
- Disclaiming property on behalf of the principal.
- Accessing a safe deposit box or vault leased by the principal.
- Rejecting, renouncing, disclaiming, releasing, or consenting to a reduction in or modification of a share in or payment from an estate, trust or other beneficial interest on behalf of the principal.
Agent Competence and Liability
A principal may select a particular agent because that person has special skills or expertise, or holds themselves out as having such. Then the court must consider the agent’s special skills or expertise in determining whether the agent has acted with care, competence and diligence under the circumstances.
If the agent does not breach their duty to the principal, the agent is not liable if the value of the principal’s property declines. Unless the POA provides otherwise, the agent is entitled to a reimbursement of expenses reasonably incurred on behalf of the principal. The agent is also entitled to reasonable compensation under the circumstances.
Recording a Power of Attorney
A POA does not need to be recorded with a county register of deeds to be effective. Yet recording the document with the local register of deeds gives other parties notice that the POA exists.
The fee for recording a POA varies by county. For example, in Beaufort County, recording a POA costs $25.
Health Care POAs
Laws relating to health care powers of attorney can be found in the South Carolina Code of Laws, Section 62-5-501. An agent with a durable health care POA is authorized to make medical decisions for the principal. A POA for a health care agent must conform to the same requirements as a regular POA.
For example, the principal or a person in their presence and at their direction must sign the health care POA.
A health care POA also must be notarized. A health care agent may not be a health care provider or an employee of a provider with whom the principal has a provider-patient relationship at the time that the health care POA is executed.
The health care agent must not be an employee of a nursing care facility in which the principal resides. Further, the health care agent may not be a spouse of the health care provider or an employee of the health care provider. The exception to this rule is if the health care provider, employee or spouse is a relative of the principal.
How to Establish POA in South Carolina
A person can consult an attorney experienced in estate planning to get a fuller explanation of how to draft and execute a POA in South Carolina. Alternatively, they can read the state statutes on POAs to learn how to draft the document. Seniors age 60 and older in the state qualify for legal assistance to execute a health care POA.
The South Carolina Department on Aging can provide seniors 60 and older with legal assistance for a living will, a legal document that provides instructions for an individual’s medical care or termination of medical support if they become incapacitated.
A living will differs from a health care POA in that a living will may not confer a health care POA upon a health care agent.
- South Carolina Code of Laws: Title 62 Article 8 South Carolina Uniform Power of Attorney Act
- South Carolina Code of Laws: Title 30 Section 5 Recording, Generally
- Beaufort County, South Carolina: Register of Deeds, Document Recording
- South Carolina Code of Laws: Title 62 Article 5 Protection of Persons Under Disability and Their Property
- South Carolina Department on Aging: Legal Assistance for Seniors
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.