What Are the Requirements for a Power of Attorney in South Carolina?
Full Question:
Answer:
The statutes below are SC laws setting forth requirements of a power of attorney, other than a health care power of attorney:
§ 62-5-501. When power of attorney not affected by disability.
(A) Whenever a principal designates another his attorney in fact by a
power of attorney in writing and the writing contains (1) the words "This
power of attorney is not affected by physical disability or mental
incompetence of the principal which renders the principal incapable of
managing his own estate", (2) the words "This power of attorney becomes
effective upon the physical disability or mental incompetence of the
principal", or (3) similar words showing the intent of the principal that
the authority conferred is exercisable notwithstanding his physical
disability or mental incompetence or either physical disability or mental
incompetence, the authority of the attorney in fact is exercisable by him
as provided in the power on behalf of the principal notwithstanding later
physical disability or mental incompetence of the principal or later
uncertainty as to whether the principal is dead or alive. The power may
define "physical disability" or "mental incompetence" and may set forth
the procedures for determining whether the principal is physically
disabled or mentally incompetent. If no definition of mental incompetence
or procedures for determining mental incompetence are set forth, and the
authority of the attorney in fact relates solely to health care, mental
incompetence is to be determined according to the standards and
procedures for inability to consent under Section 44-66-20(6) of the Adult
Health Care Consent Act. The authority of the attorney in fact to act on
behalf of the principal must be set forth in the power and may relate to
any act, power, duty, right, or obligation which the principal has or may
acquire relating to the principal or any matter, transaction, or
property, including the power to consent or withhold consent on behalf of
the principal to health care. The attorney in fact has a fiduciary
relationship with the principal and is accountable and responsible as a
fiduciary. All acts done by the attorney in fact pursuant to the power
during a period of physical disability or mental incompetence or
uncertainty as to whether the principal is dead or alive have the same
effect and inure to the benefit of and bind the principal or his heirs,
devisees, legatees, and personal representative as if the principal were
alive, mentally competent, and not disabled physically.
(B) An instrument to which this section is applicable also may provide
for successor attorneys in fact and provide conditions for their
succession, which may include an authorization for the court to appoint a
successor, and the succession may occur whether or not the principal then
is physically disabled or mentally incompetent. The appointment of an
attorney in fact under this section does not prevent a person or his
representative from applying to the court and having a guardian or
conservator appointed. Unless the power of attorney provides otherwise,
appointment of a guardian terminates all or part of the power of attorney
that relates to matters within the scope of the guardianship, and
appointment of a conservator terminates all or part of the power of
attorney that relates to matters within the scope of the
conservatorship.
(C) A power of attorney executed under the provisions of this section
must be executed and attested with the same formality and with the same
requirements as to witnesses as a will. In addition, the instrument must
be recorded in the same manner as a deed in the county where the
principal resides at the time the instrument is recorded. After the
instrument has been recorded, whether recorded before or after the onset
of the principal's physical disability or mental incompetence, it is
effective notwithstanding the mental incompetence or physical
disability. If the authority of the attorney in fact relates solely to
the person of the principal, the instrument is effective without being
recorded.
(D) A power of attorney as provided for under this section is valid
if:
(1) executed in compliance with this section; or
(2) its execution complies with the law at the time of execution of
the jurisdiction where the instrument was executed and it is recorded
as required by subsection (C). Notwithstanding the provisions of
Section 30-5-30, a valid power of attorney as provided for under this
section which is executed in another jurisdiction may be recorded as
though it complies with the provisions of subsection (C) of this
section.
(E) A properly executed durable power of attorney that authorizes an
attorney in fact to make health care decisions or other decisions
regarding the principal is valid whether or not it was executed after
May 14, 1990.
(F)(1) A third person in this State who receives or is presented with
a valid power of attorney executed pursuant to this section, and has
not received actual written notice of its revocation or termination,
must not refuse to honor the power of attorney if it contains the
following provision or a substantially similar provision:
"No person who may act in reliance upon the representations of my
attorney-in-fact for the scope of authority granted to the
attorney-in-fact shall incur any liability as to me or to my estate as a
result of permitting the attorney-in-fact to exercise this authority, nor
is any such person who deals with my attorney-in-fact responsible to
determine or ensure the proper application of funds or property."
As used in this subsection, "to honor" a power of attorney means to
deal with the attorney-in-fact as if the attorney-in-fact were the
principal, personally present and acting on his own behalf within the
scope of the powers granted to the attorney-in-fact.
(2) Unless the third person actually has received written notice of the
revocation or termination of a valid power of attorney executed in
accordance with this section, a third person in this State who receives
or is presented with a power of attorney:
(a) does not incur liability to the principal or the principal's
estate by reason of acting upon the authority of it or permitting the
attorney-in-fact to exercise authority;
(b) is not required to inquire whether the attorney-in-fact has power
to act or is properly exercising the power; or
(c) is not responsible to determine or ensure the proper application
of assets, funds, or property belonging to the principal.
(3) A "third person" means an individual, a corporation, an
organization, or other legal entity for purposes of this subsection.
(G)(1) An attorney-in-fact is entitled to reimbursement for expenses
and compensation for services as provided in the power of attorney. In
the absence of a provision in the power of attorney regarding
reimbursement or compensation, or both:
(a) an attorney-in-fact is entitled to reimbursement for all reasonable
costs and expenses actually incurred and paid by the attorney-in-fact on
the principal's behalf;
(b) an attorney-in-fact, upon the approval of the probate court, is
entitled to reasonable compensation based upon the responsibilities he
assumed and the effort he expended; and
(c) if two or more attorneys-in-fact are serving together, the
compensation paid must be divided by them in a manner as they agree or
as determined by a court of competent jurisdiction if they fail to
agree.
(2) An interested person may petition a court of competent jurisdiction
to review the propriety and reasonableness of payment for reimbursement
or compensation to the attorney-in-fact, and an attorney-in-fact who has
received excessive payment may be ordered to make appropriate refunds to
the principal.