A South Carolina durable power of attorney form allows you to grant an agent the authority over finances, effective even if you later face mental challenges or incapacity.
The person granting this authority (the principal) should entrust power solely to a reliable individual (the agent) since this version remains effective throughout the principal’s lifetime unless the principal explicitly revokes it.
Laws
- Statute: Title 62 Article 8 (South Carolina Uniform Power of Attorney Act).
- Presumed Durable: Yes (§ 62-8-104).
- Signing Requirements: Two witnesses must acknowledge the principal’s signature (§ 62-8-105).
- Notarization: A notary public must acknowledge the signatures (§ 62-8-105).
- Statutory Form: No statutory form is currently in the state’s laws.
Definitions
Durable – “Durable,” when relating to a power of attorney, means not ended by the principal’s incapacity (§ 62-8-102(2)).
Power of Attorney – “Power of attorney” means a writing or another record granting authority to an agent to act in the principal’s place. These conditions apply regardless if the document expressly contains the phrase “power of attorney” (§ 62-8-102(7)).
Specific Powers and Limitations
Restrictions on Gifts and Transfers
S.C. Code § 62-8-217 outlines the specific limitations for an agent’s gift-giving restrictions:
Types of Gifts
- Gift “for the benefit of” a person: These gifts include a gift to a trust, an account under the Uniform Transfers to Minors Act, and a tuition savings account or prepaid tuition plan defined in 26 U.S. Code § 529.
- Outright gifts to individuals: The agent can give any of the principal’s property. The amount they distribute to each donee shouldn’t exceed the annual dollar limits of the federal tax exclusion.
- Consent to splitting gifts that the principal’s spouse makes: An agent can consent to gift splitting, which allows the principal’s spouse to use the combined annual exclusions of both spouses for gifts to external entities. The agent can treat gifts only the principal’s spouse made as if the principal and spouse made them.
Considerations
- The nature and value of the principal’s property
- The principal’s history of contributing or joining in contributing gifts
- The principal’s eligibility for a program, a benefit, or assistance under state law
- Tax-saving strategies
- The principal’s potential future obligations and need for maintenance
Agent’s Authority Limitations
S.C. Code § 62-8-201 highlights an agent’s limitations when acting in the principal’s interest. These limitations help ensure the agent always does what’s best for the principal and any dependents the principal has.
This statute prevents the agent (unless they’re a descendent, spouse, or ancestor of the principal) from making decisions and exercising authority to benefit themselves or someone they owe a legal obligation of support.
Revocation and Termination
S.C. Code § 62-8-110 discusses the revocation and termination of a DPOA. This form terminates if one of the following events occurs:
- The principal dies.
- The principal revokes the form.
- The agent dies or cannot act in the principal’s best interest.
- The principal revokes the agent’s authority.
An agent’s authority ends when one of the following events occurs:
- The principal revokes their authority.
- The document terminates.
- The agent resigns, becomes incapacitated, or dies.
- The agent’s authority is revoked pursuant to § 62-2-507.
Unless the original document states otherwise, you must revoke the DPOA according to § 62-8-105 and § 62-8-106. If you recorded the original document, you must also record the revocation in the same county.
Safekeeping and Registration
While there’s no statewide registry, you must file or record your document in the land records office (the register of deeds) of the county of residence. This requirement is unlike other states, which only require you to record the form if the agent has the power to handle real estate matters.
The principal and the agent should retain their own copies to reference if issues arise.
Additional Resources
- The South Carolina Bar has informative articles on legal matters, including A Quick Guide to the South Carolina Uniform Power of Attorney Act.
- The state’s Judicial Branch offers Frequently Asked Questions (FAQs) in South Carolina Probate Court to educate people navigating their personal and legal matters.
- The SC Bar offers pro bono legal resources and legal aid services to assist people with legal challenges.
