South Carolina Power of Attorney Guide

A power of attorney (POA) is a vital legal instrument that allows an individual, known as the principal, to designate another person, called the agent or attorney-in-fact, to manage their financial, property, and other affairs. In South Carolina, these documents are governed by the South Carolina Uniform Power of Attorney Act (SCUPAA), enacted in 2016 to standardize and enhance protections for principals. This legislation aligns with national standards while incorporating state-specific rules, ensuring POAs are reliable tools for incapacity planning and daily management.

Fundamentals of Powers of Attorney in South Carolina

At its core, a POA establishes an agency relationship where the agent’s authority derives directly from the principal’s grant. South Carolina law distinguishes between general and durable POAs. A general POA ceases upon the principal’s incapacity, whereas a durable POA persists, providing continuity during periods of disability. Since January 1, 2017, all new POAs in the state are presumed durable unless explicitly stated otherwise, a key safeguard introduced by the SCUPAA.

Principals must select agents carefully, often choosing trusted family members, friends, or professionals. Agents owe fiduciary duties, acting solely in the principal’s best interest. The law empowers principals to customize the POA’s scope, effective date, and termination conditions, offering flexibility for diverse needs like travel, medical treatment, or long-term care planning.

Types of Powers of Attorney Available

South Carolina recognizes several POA variants to suit different scenarios:

• Durable Financial POA: The most common type, authorizing handling of bank accounts, investments, real estate, and bills even after incapacity. Essential for estate planning.
• Non-Durable (Springing) POA: Activates only upon a specified event, such as incapacity certification by physicians. Less common due to default durability rule.
• Limited POA: Grants authority for a single transaction, like selling a vehicle or closing a real estate deal.
• Medical POA: Separate from financial POAs, focuses on healthcare decisions; governed by different statutes but complements financial planning.

Choosing the right type depends on the principal’s circumstances. For comprehensive protection, combining a durable financial POA with a healthcare directive is advisable.

Execution and Validity Requirements

To be legally binding, a South Carolina POA must meet strict formalities under SCUPAA Sections 62-8-105 and 62-8-106. The principal must sign the document voluntarily while having mental capacity, understanding its implications. No notary is strictly required for creation, but notarization or witness attestation is highly recommended—and often mandatory—for third-party acceptance, such as banks or title companies.

For POAs effective upon incapacity (springing POAs), the principal may nominate determiners, like doctors, to confirm the triggering event via written record. Absent such designation, two qualified physicians or a court can certify incapacity. Post-incapacity exercise of authority requires recording the POA in the county of the principal’s residence (or property location if out-of-state), akin to deed recording. This step ensures enforceability against skeptical institutions.

Scope of Agent’s Authority

Agents under a South Carolina POA wield extensive powers if granted, applicable to property owned at execution or acquired later, regardless of location. The SCUPAA outlines 13 categories of general authority, incorporable by reference for brevity:

• Real property transactions: Buying, selling, mortgaging, leasing.
• Tangible personal property: Acquiring, selling, securing interests.
• Stocks, bonds, investments: Voting, converting, managing portfolios.
• Banking and financial dealings: Deposits, withdrawals, loans.
• Business operations: Forming entities, filing reports, paying taxes.
• Insurance and annuities: Purchasing, modifying policies.
• Estates, trusts: Claiming benefits, managing interests.
• Litigation: Suing, settling claims.
• Family maintenance: Providing for dependents.
• Government benefits: Applying for programs.
• Retirement plans: Distributions, rollovers.
• Taxes: Filing returns, contesting assessments.
• Gifts: To family, within limits to avoid estate tax issues.

These powers bind the principal and successors as if performed personally. Agents may also delegate tasks but cannot self-deal without explicit permission.

Duties and Liabilities of Agents

Agents must act loyally, prudently, and in good faith, avoiding conflicts of interest. SCUPAA mandates duties like accounting, record-keeping, and cooperation with successors. Liability arises for breaches including dishonesty, bad faith, gross negligence, willful misconduct, reckless indifference, or fraud. Provisions inserted via abuse of fiduciary relationships are voidable.

Agents are entitled to reasonable expense reimbursement but not automatic compensation unless specified. Judicial oversight is available if disputes arise, with courts prioritizing the principal’s intent.

When and How POAs Terminate

A POA ends under these conditions:

• Principal’s revocation while competent.
• Principal’s death.
• Principal’s incapacity, if non-durable.
• POA’s built-in termination date or purpose fulfillment.
• Agent’s death, incapacity, resignation, or revocation without successor.

Revocation requires written notice to the agent and third parties relying on the POA. Durable POAs survive incapacity but not death, transitioning to probate processes.

Recording and Third-Party Reliance

Recording is crucial post-incapacity for agent authority, filed like a deed. Third parties, like banks, may reject unrecorded or suspicious POAs but are protected if they rely in good faith on a facially valid document. The SCUPAA shields good-faith actors, encouraging acceptance.

SCUPAA Application to Existing POAs

POAs created before January 1, 2017, follow prior law, but post-2017 instruments fall under SCUPAA. Restatements after 2017 adopt new rules. This transition ensures legacy documents remain valid while modernizing practices.

Practical Steps for Creating a POA

1. Assess needs: Financial, limited, or healthcare.
2. Select agent and successors.
3. Draft using SCUPAA-compliant forms or attorney.
4. Execute with notarization.
5. Distribute copies to banks, advisors.
6. Record if incapacity anticipated.
7. Review periodically or upon life changes.

Professional legal advice is recommended to tailor the POA and avoid pitfalls.

Frequently Asked Questions (FAQs)

Does a South Carolina POA need to be notarized?

While not always mandatory for creation, notarization is essential for recording and third-party acceptance.

Can a POA be used after the principal’s incapacity?

Yes, if durable and recorded post-incapacity in the appropriate county.

Who can serve as an agent?

Any competent adult, but ideally a trusted individual without conflicts.

How do I revoke a POA?

By written notice to the agent and relevant parties while competent.

Are there statutory POA forms in South Carolina?

SCUPAA provides optional short and long forms for general authority.

Planning Ahead with POAs

Incorporating a POA into broader estate planning—wills, trusts, directives—ensures seamless management. South Carolina’s framework promotes autonomy, protecting assets during vulnerability. Consult an attorney to navigate nuances, especially for complex estates or blended families. With proper setup, a POA empowers agents to act decisively, preserving the principal’s legacy.

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Medha Deb is an editor with a master's degree in Applied Linguistics from the University of Hyderabad. She believes that her qualification has helped her develop a deep understanding of language and its application in various contexts.

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