Some Highlights of The New South Carolina Uniform Power of Attorney Act
As of the start of this year, new statutes govern many South Carolina powers of attorney. Generally stated, a power of attorney grants someone else authority to act on your behalf. The scope of authority can be limited or broad. I have drafted one where a person was going to be out of the country and needed somebody else to appear one time to sign real estate closing documents. That is an example of a very limited power. Much more frequently, I draft powers of attorney in estate planning. They are larger in scope.
This article will review some features of the new law, avoiding legalese wherever possible.
South Carolina has statutes that tell us how a power of attorney needs to be signed, who can make one, and what they mean. Estate planning attorneys look at those statutes when drafting a power of attorney. Obvious items like signing requirements are very important. There are also more subtle parts of the law that impact the estate planning lawyer’s drafting.
The South Carolina Uniform Power of Attorney Act was put in place as of January 1, 2017. It replaced former South Carolina laws on powers of attorney. For many people, it will change what needs to appear in a power of attorney.
Would you like to see the old and new law? The starting points are South Carolina Code section 62-5-501 and 62-8-101. These can be quickly found with a search engine. The renumbering makes it somewhat confusing at first glance. You will want to pay attention to the notes about the effective dates. You can probably pickup more by looking at the bill itself. It contains notes and comments that explain some of the new law.
Which Estate Planning Documents Should I Be Thinking About?
A Healthcare Power of Attorney is used to make certain decisions for a time when the person can no longer communicate with a healthcare provider. A healthcare agent is appointed to step in. A General Durable Power of Attorney grants broad authority for another to handle financial matters during incapacity. One goal of both documents is to avoid the need for a lengthy and costly conservatorship/guardianship proceeding. Healthcare Powers of Attorney and General Durable Powers of Attorney are subject to the new law.
What Has Changed For a Healthcare Power of Attorney?
Not much is different other than where the statute is found. It used to be at section 62-5-504 and now appears in sections 62-5-501 through 62-5-518. The substance is the same. Generally, a Healthcare Power of Attorney will reference the statute on the first page so it is important to make note of the change.
One item is worth a mention that doesn’t directly relate to a Healthcare Power of Attorney. It deals with general powers of attorney. But it discusses how those interact with a Healthcare Power of Attorney. As a default rule, an agent under some other power of attorney must cooperate with the healthcare agent.
Up Next: Part 2 of this Article