Changes to Powers of Attorney under South Carolina’s Uniform Power of Attorney Act
by Michael B. Bridges; Dobson, Jones, Ball, Phillips & Bridges, PA Attorneys at Law
The South Carolina Uniform Power of Attorney Act was signed into law by Governor Nikki Haley on June 6, 2016 and became effective January 1, 2017. This Act replaced South Carolina’s former provisions under the South Carolina Code. The new law was designed to simplify and clarify the means of using a power of attorney. The law applies to powers of attorney executed after the effective date. Some of the changes are significant and are detailed below.
Durability. Under the new law, a power of attorney is assumed to be durable (survives incapacity) unless stated otherwise in the document. This means that the power of attorney remains valid if the principal (individual granting the agent the power under the document) becomes incapacitated. Previously, the document had to specify in clear terms that it was durable in order to be valid in the event of the principal’s incapacity.
Terms. The term “Agent” has now replaced “attorney in fact.” This change was implemented to avoid confusion and clarify between the individual serving under the document and the Principal’s attorney at law. The term “incapacity” has replaced the term “disability” as many people with dis-abilities are able to manage their property and affairs.
Multiple Agents. If two or more agents are appointed under a power of attorney, the new law provides that each agent may act independently of the other agents unless stated otherwise in the document. Therefore, an individual should specify in the power of attorney if he or she wants the agents to act jointly in making decisions.
Gifting and changing beneficiaries. Under the new law, an agent cannot make gifts of the Principal’s assets or change beneficiaries unless authorized in the document. In addition, the agent may not access the Principal’s safety deposit box unless authorized in the document. These are very important provisions for those trying to qualify for government benefits and the advantages and disadvantages of such provisions should be carefully evaluated by anyone executing a power of attorney.
Real Estate. If the power of attorney gives broad general authority over real estate, the agent is permitted to buy, sell or mortgage such real estate.Capacity. The Act clarifies that an individual executing power of attorney or revoking a power of attorney must have contractual capacity. The means that, in general, the individual must understand the nature of the document and its consequences upon his or her rights and interests in order to execute the document.
As one can see, a power of attorney concerns very complex issues that should be discussed with an attorney in drafting the document. Each power of attorney should be tailored to the individual’s needs similarly to a Will or Trust. No one should assume that a standard form or template power of attorney will suit their specific circumstances. Therefore, I recommend that individuals interested in creating a new power of attorney contact an attorney at law experienced in handling issues of particular importance to seniors
