SC POA Laws:
A South Carolina power of attorney must comply with the Uniform Power of Attorney Act, Title 62, Article 5 of South Carolina’s probate code. These state laws specifically outline the parameters of a legally enforceable power of attorney and ensures that the form, as well as its duties, are protected under the law. Here are some of the state’s power of attorney requirements:
- The power of attorney form used must be the same or substantially similar to the form provided by the state.
- The principal must be at least 18 years of age.
- The principal must be of sound mind and understand what they are signing.
- The form must be signed and dated, along with affirmation from two witnesses.
- The form must list the full name and address of the selected attorney-in-fact.
- POAs can be recorded as part of the public record in the county where the principal lives.
The principal can explicitly state which powers the agent can and cannot use. The principal can also revoke the power of attorney as long as they are competent. This includes durable powers of attorney. Additionally, a power of attorney terminates when:
- The principal dies.
- The principal becomes incapacitated and the power of attorney is not durable.
- The principal has a guardian appointed through formal court proceedings.
- The purpose of the power of attorney is fulfilled.
- The court terminates the power of attorney.
Why Would You Use a South Carolina Power of Attorney Form?
There are several reasons why someone would use a South Carolina power of attorney form to provide another person with the ability to make decisions related to their personal property, financial institution transactions, tax matters, or their well-being. Some of those reasons include:
- Their age, mental health concerns, or the diagnosis of an illness. They could want their affairs handled in a specific manner. It is generally advised that everyone, including those who are in perfect health and those who are diagnosed with a terminal illness, have the right power of attorney in place to ensure their affairs are appropriately managed and that their wishes are fulfilled.
- Someone diagnosed with a mental illness may need a different power of attorney than someone diagnosed with a terminal illness.
- Someone who is a parent of minor children may need a different power of attorney than someone who is not a parent of minor children.
Each person’s power of attorney needs can vary. There are several types of power of attorney documents available. Before you choose one, seek legal advice so that you choose the best one to meet your needs. You should also ask how to revoke the POA in the event it becomes necessary for you to do so. Here are the most common South Carolina power of attorney documents used.
General Power of Attorney
A general power of attorney grants an agent broad power to handle matters on behalf of the principal.
- However, this POA terminates if the principal become incapacitated, dies, or if the principal revokes it.
Durable Power of Attorney
A durable power of attorney is an "extended version" of a general power of attorney because it goes beyond the parameters of a general power of attorney.
- The term "durable" comes from the fact that this authorization continues over the principal if they become incapacitated. One of the most common types of durable powers of attorney in South Carolina is for healthcare. South Carolina Department of Aging provides a free durable power of attorney for healthcare as a PDF download. The principal may revoke a durable power of attorney as long as they are competent.
Limited Power of Attorney
A limited power of attorney, also known as a special power of attorney, grants limited power to whatever the principal specifies.
- In many cases, an agent will have power to handle finances, or make medical decisions, but will not have authority to do other things such as sell property (depending on what the principal decides). Just like a general power of attorney, the authority terminates if the principal becomes incapacitated, dies, or revokes it. It also terminates if its purpose is fulfilled.
Healthcare (Medical) Power of Attorney
A healthcare (medical) power of attorney gives the agent the ability to make healthcare decisions on the principal's behalf.
- This type of POA may be durable or nondurable. When it is nondurable, the document loses its validity if the healthcare provider declares the principal is incompetent or incapacitated. If the POA is durable, the agent can continue to make decisions if the principal is declared incompetent or incapacitated, but they may not make end-of-life decisions. The principal needs to complete a living will while they are of sound mind to express their wishes. Those are the wishes that will be followed. The South Carolina Bar provides a free PDF download for a living will.
Guardian of Minor Child Power of Attorney
A guardian of minor child power of attorney allows a parent or guardian to grant decision-making rights over their child to a temporary guardian in the event that the parent or guardian may not be present during a medical emergency.
- This form is generally used if the parent or guardian must leave the country for a period of time. It may also be used if the minor is temporarily living with or traveling with an adult who is not their parent or guardian.
Real Estate Power of Attorney
A real estate power of attorney grants power to the agent to buy, sell, and manage real estate on the principal's behalf.
- This power of attorney may be durable or nondurable. However, because it is an extremely powerful document, the principal should seek legal advice before signing it.
Tax Power of Attorney
A tax power of attorney, officially known in South Carolina as Form SC-2848, allows the agent who is usually a qualified individual such as an accountant, to prepare and submit tax information to the South Carolina Department of Revenue and discuss tax matters on behalf of the principal.
Vehicle Power of Attorney
A vehicle power of attorney allows the agent to buy, sell, and handle the necessary paperwork with the South Carolina Department of Motor Vehicles on the principal's behalf.
- The official name of this form is MC-25.