Legal Requirements for a Power of Attorney in South Carolina

As people age, they begin to think, and sometimes worry, about who would make decisions for them if they were to become incapacitated in any way. What would happen to your bank accounts, medical care, decisions regarding surgeries, and other important aspects of your life?

A power of attorney designation gives you the peace of mind that comes with having a trustworthy individual in charge of these important decisions. If you would like help with estate planning services in South Carolina, call Bespoke Estate Law. We would be happy to provide a complimentary consultation.

Legal Requirements for a Power of Attorney in South Carolina

In South Carolina, a Power of Attorney (POA) is a legal document granting one person (the agent) the authority to act on behalf of another (the principal). This is governed by the South Carolina Uniform Power of Attorney Act (S.C. Code Ann. §62-8-101 et seq.). To be valid, the POA must meet specific legal standards established under the South Carolina Uniform Power of Attorney Act. We will discuss each legal standard in greater detail below.

Legal Requirements for You, the Principal

You, (the “principal”) must meet certain legal requirements. First, a principal must be at least 18 years old and mentally competent at the time the document is executed. This means that you must have the capacity to understand the nature and effect of granting someone else authority to act on your behalf. If you are contemplating this decision, you are most likely competent.

You must clearly define the powers being granted to the agent in the POA document, and an attorney will help you by drafting an air-tight document. These powers can be broad, such as managing all financial affairs, or limited to specific tasks like selling a property. South Carolina law, specifically S.C. Code Ann. §62-8-104, requires the principal to explicitly state whether the POA is durable. “Durable” simply means that the agreement will remain in effect even if the principal becomes incapacitated.

Qualifications for Someone to be Named Agent under a Power of Attorney

South Carolina law allows any competent adult, including a relative, friend, or professional advisor, to serve as an agent. The agent must be someone the principal trusts, since they will have authority over the principal’s affairs.

The agent must agree to act in good faith, in the principal’s best interest, and within the scope of authority granted by the POA. This is covered in detail within S.C. Code Ann. §62-8-114. While South Carolina does not require agents to have specialized financial or legal knowledge, they must act prudently and avoid conflicts of interest. If the agent fails to fulfill their duties, they can be held legally accountable for their actions.

Legal Requirements For the Form and Signing Process

South Carolina POAs must be in writing and clearly state the powers being granted to the agent. A generic or vague document may be deemed invalid, and a power of attorney lawyer will help you avoid language that may invalidate your POA.

The principal must sign the POA in the presence of two witnesses who are not named as agents or potential beneficiaries in the principal’s estate. Additionally, the document must be notarized. If the POA is intended to grant authority over real estate transactions, it must also be recorded with the Register of Deeds in the county where the property is located.

Who Keeps the Original Copy of a POA?

Typically, the principal keeps the original, and the agent receives a certified copy to use when necessary. It may be prudent to provide copies to financial institutions or other parties who will require proof of the agent’s authority.

The original POA may also be held by the principal’s estate planning attorney for safekeeping. Regardless of where the original is kept, the principal should inform the agent and trusted family members of its location, and if it remains with your attorney, work with their office to understand contingency plans and how to access it.

Why You Should Work with an Experienced Estate Planning Attorney for Your POA

Your POA is too important to simply download a template from the internet and fill in the blanks yourself. Work with an experienced estate planning attorney and make certain the document is legally valid and tailored to your needs. An attorney can help you understand the different types of POAs, such as general, durable, limited, or medical, and he/she will advise on which type of POA is the best fit for your needs.

Also, an attorney will draft the document with clear language that will prevent disputes in the future. The least you can do for your heirs is to provide documentation that makes it easy to manage your affairs and attend to your wishes as you age.

From will writing to trust formation services, Bespoke Estate Law is here to help you manage your wealth and personal affairs. For a complimentary consultation regarding your estate plan, please get in touch.