Part 3 on Some Highlights of The New South Carolina Uniform Power of Attorney Act

In a power of attorney, a principal grants authority to an agent to handle certain transactions or decisions. Estate planning lawyers use them for advance planning. A General Durable Power of Attorney and a Healthcare Power of Attorney are part of most estate planning packets. One of the purposes is to plan for who will handle affairs and make healthcare decisions when you can no longer do so.

In South Carolina, estate planning attorneys have new law to consider when drafting these documents. Here are some final thoughts on the law, meant to be as readable as possible:

What Does the Power of Attorney Mean?

The act has a system for determining this. It would be very difficult to write out every task that you need your agent to be able to handle. On the other hand, it is a problem for an agent to get powers that were not intended. If the estate planning lawyer had to draft everything an agent might do and all the limitations, you would end up with a very long power of attorney that would be difficult to comprehend. You should be able to understand an important document you are signing. It is likewise valuable for a third-party to be able to work through a power of attorney that is being used.

The law strikes a balance. It determines that some powers are so important they need to be specifically written into the document. Others can be included by a more general reference to the statute. Finally, some powers are incidental to others and are included by default.

Of course, the statutory language is just the starting place. Any powers can be modified as needed. The language in the statute might be too limited or not limited enough.

This is where communication with your estate planning attorney is likely to be most important. You want to find the line between granting too much power and not enough.

Specific Authority Granted by Express Language

Certain powers that you wish to give to an agent have to be specifically listed. The thought is to protect the principal and curb abuses by agents. If you want your agent to be able to make gifts of your assets to others, for example, the document must say so. Otherwise, your agent will not have that power. There are twelve items listed in this category. It seems to me they are the kinds of things most don’t want agents to do but might accidentally give power for.

Authority Given by Reference to Statute

For other powers, a more general reference may be made. An example is real property. The power of attorney can reference the code section dealing with real property. That gives the agent all the powers listed in that section, such as buying and selling and many other things. It also gives the agent a second-set of incidental powers. Those are powers incidental to dealing with real property. All of this is accomplished without having to list everything the agent can do. Instead, the power of attorney just cites the statute.

That seems clear cut. In some cases, it may be. But in others, what is listed in the statute will be too broad or narrow. Where that is the case, the power of attorney should modify the default language in the code.

What your power of attorney means might not be clear by just reading it. You also want to know how it interacts with the statute. The new law has made communication between clients and drafting attorneys as important as ever.

 

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