If you’re trying to figure out how to get power of attorney (POA) in South Carolina (SC), you’re already taking an important step toward protecting yourself or someone you love. A Power of Attorney (POA) is one of the most consequential legal documents a person can have. When considering or crafting a power of attorney, the details must be correct.
Whether you are a caregiver helping an aging parent manage their finances, an adult planning for the unexpected, or someone preparing for a medical procedure, a valid POA ensures that someone you trust can make critical decisions on your behalf, should you need them to.
Without an effective POA, your most trusted loved ones may be unable to make the decisions that are right for you when you are unable to make those decisions for yourself. Indigo Family Law can help. To request a consultation with our lawyers, contact our South Carolina law firm today.
What Is a Power of Attorney?
A Power of Attorney (POA) is a legal document that authorizes another person, called the agent (or “attorney-in-fact”), to make decisions on your behalf. The person granting that authority is called the principal, and you may be the principal.
You may choose, design, or modify POA to allow (or not allow) the agent to:
- Manage your bank accounts
- Pay your bills
- Buy or sell real estate in your name
- Handle business transactions
- Manage investments
- File your taxes
- Make healthcare decisions that you are unable to make yourself
Power of Attorney vs. Other Legal Tools
It’s important to understand how POA differs from other legal tools.
A will only takes effect after death, while a POA is active during your lifetime.
Guardianship, by contrast, is a court-supervised arrangement typically pursued when someone lacks capacity and has no existing POA. This difference highlights why so many people want a POA, as it may eliminate potentially problematic court intervention.
A power of attorney tends to be more efficient, less expensive, and able to keep control in the hands of a person you trust, rather than the courts or others you might not.
Types of Power of Attorney in South Carolina
When it comes to power of attorney, South Carolina law recognizes several types. Our team is familiar with each type of POA and who they work best for.
General Power of Attorney
A General POA grants your agent broad authority to handle financial and legal matters on your behalf. S.C. Code Ann. § 62-8-201 (the South Carolina Uniform Power of Attorney Act) details how someone with a general POA may:
- Access bank accounts (and deposit or withdraw funds from them)
- Manage investment accounts
- Execute real estate transactions
- Operate and manage a business
- Make tax-related decisions and transactions
- Apply for government benefits
These powers may seem comprehensive, and they are. However, an agent with a general power of attorney needs special permission for certain consequential decisions, including modifying estate plans.
Durable Power of Attorney
A Durable Power of Attorney (DPOA) is a class of POA that others, like a general POA or medical POA, can fall within. Per SC Code § 62-8-104, a POA that is “durable” is one that remains in effect if the principal becomes incapacitated.
Durable POAs are a common conversation for those concerned about aging, cognitive decline, or serious illness. However, you should explicitly designate a POA as non-durable if you do not want it to remain in effect due to incapacity. Life can be unpredictable, and any POA document should reflect that incapacity can occur at virtually any time.
Medical Power of Attorney (Healthcare POA)
A Medical Power of Attorney is sometimes called a Healthcare POA. This class of POA authorizes your agent to make healthcare decisions on your behalf if you’re unable to make them yourself.
Healthcare POAs often become relevant when someone is unable to make their own decisions regarding:
- Which medical treatment options to pursue (or not pursue)
- Whether to undergo surgery
- How end-of-life care should be handled
A medical POA document is often paired with a living will or advance directive to give healthcare providers a complete picture of your wishes, should you become incapacitated.
Limited (Special) Power of Attorney
A Limited Power of Attorney grants your agent authority over a specific task or transaction.
For example, you might grant an agent a limited POA to complete a real estate closing or sign particular documents while you’re unavailable. Once that task is completed, the POA expires.
Who Can Serve as an Agent?
As you now see, the agent becomes an extension of you within the scope of a POA. Choosing an agent is, therefore, arguably the most crucial decision you will make when creating any POA document.
Legal Qualifications
Under South Carolina law, an agent must be:
- At least 18 years old
- Mentally competent and capable of understanding the responsibilities involved in becoming an agent
There is no requirement that your agent be a legal or financial professional. The most important factor in choosing an eligible agent is trust.
Who Should Not Generally Serve as Agent
Most principals are wise to avoid naming an agent who:
- Has a conflict of interest in making decisions on your behalf (for instance, you might not want someone who stands to gain from your estate to make life-and-death medical decisions)
- Is financially irresponsible (or has been in the past)
- Is inaccessible in any way that matters to the POA
- May not be trusted by others who have a stake in the decisions that the agent may need to make (such as your loved ones)
You want your agent to be clear-headed, responsible, available, and trusted.
Tips for Choosing the Right Agent
A simple guide for choosing a qualified agent is to seek someone who:
- Is honest
- Is reliable
- Has the other traits, knowledge, and capacity necessary to make the decisions their role may require
- Is willing to handle the role
- You have spoken to about the role
Be aware that in South Carolina, if your spouse is named as your agent and you later divorce, their authority under the POA automatically ends. This is one of several reasons to consider naming a successor agent as a backup in case your first choice becomes unavailable or unwilling to fulfill their duties as an agent.
Legal Requirements in South Carolina
To be valid, a Power of Attorney in South Carolina must meet specific South Carolina POA requirements under the South Carolina Uniform Power of Attorney Act, which took effect January 1, 2017.
Principal Requirements
The principal who grants a power of attorney:
- Must be 18 years or older
- Must have the capacity to understand the nature of the document and the authority being granted
Document Requirements
The power of attorney document must:
- Be in writing
- Clearly identify the principal and agent
- Describe the scope of authority being granted
Signing, Witness, and Notarization Requirements
Under SC Code § 62-8-105, a valid power of attorney in South Carolina must be:
- Signed by the principal or by another person at the principal’s direction and in their presence
- Witnessed by two adult witnesses who are “disinterested parties”
- Acknowledged before a notary public
Recording Requirements
South Carolina has a recording requirement that makes it unique among most states. Under SC Code § 62-8-109, if you want your agent to be able to use a Durable POA after you become incapacitated, the document must be recorded with the Register of Deeds in the county where you reside. This is a step that many people overlook, and it can leave a family without options at a critical moment.
How to Get Power of Attorney in South Carolina: Step-by-Step Guide
Finalizing powers of attorney and other legally binding measures that protect you and your loved ones can be daunting, so take it step by step:
Step 1: Decide Which Type of POA You Need
Think through what authority needs to be granted and under what circumstances they should possess that authority.
Step 2: Choose Your Agent
Select someone you trust fully and confirm they understand what they’re agreeing to. Name a successor agent as a backup whenever possible and necessary.
Step 3: Obtain the Correct SC POA Form
The POA form you obtain should correspond to the POA type you are composing. We handle these key administrative steps to ensure our clients’ power of attorney documents stand up to the most intense scrutiny.
Step 4: Fill Out the Document Carefully
“Catastrophic” may be an insufficient term to explain the effect of vague language, inadequate scope, and mistakes within POAs.
Step 5: Sign the Document (with the Necessary Parties Present)
Do not sign the document until all required parties, including the two disinterested witnesses and the notary public, are present.
Step 6: Record the Document
Record the completed, signed, and notarized POA with the Register of Deeds in the county where you reside.
Step 7: Distribute and Store Copies of the POA
You will generally want to:
- Provide a copy to your agent
- Give copies to relevant institutions such as your bank, doctor, or financial advisor
- Keep the original in a safe, accessible location that the agent can access
- Consider giving a copy to your attorney for safekeeping
This process becomes far simpler when one of our South Carolina estate planning attorneys is helping you along the way.
How Much Does It Cost to Get Power of Attorney in South Carolina?
The cost of obtaining a Power of Attorney in South Carolina varies depending on how you go about it:
- The template for a do-it-yourself option may cost up to about $50
- Attorney-prepared POA generally costs over $150, depending on complexity, number of documents involved, and the specific attorney you hire
- The notary fee typically comes with a relatively modest fee
- The cost of recording the POA may add another modest fee, and it’s a step you should not skip
Considering the gravity of these documents, we urge you to enlist one of our attorneys to lead the process.
Common Mistakes When Getting Power of Attorney
Even well-intentioned POAs can run into problems due to preventable errors. Here are the most common South Carolina POA mistakes and how to avoid them:
- Not meeting the signing requirements for a legally binding POA
- Assuming notarization alone is enough (you need the witnesses too)
- Failing to record the document
- Choosing the wrong agent, which is perhaps just as critical a mistake as not ensuring your POA is legally binding
- Using an outdated or out-of-state form
- Not specifying the scope of authority clearly
- Failing to update the POA after major life changes, such as divorce, remarriage, or the death of your named agent
- Revoking a recorded POA without recording the revocation
Retaining our firm means doing what you can to avoid these and other mistakes, which can be more costly than you might imagine.
When You Should Hire an Attorney
While it’s possible to create a basic POA using a template, you likely want more certainty when crafting a document that might need to account for:
- Complex family dynamics
- High-value assets
- Special needs planning
- Healthcare planning
- Uncertainty about which type of POA is right
- Questions about mental capacity
At Indigo Family Law, we work with South Carolina families every day to put the right legal protections in place. Whether you’re planning ahead or responding to an urgent situation, our team is ready to help. Contact us today to discuss how we can help.
Frequently Asked Questions (FAQ) About Power of Attorney Documents
Does a POA expire in South Carolina?
A Durable POA does not have a set expiration date, while a Limited POA typically expires once the specific task it was created for has been completed (or when a specific date passes).
Can I revoke a Power of Attorney?
Yes. As long as you have mental capacity, you can revoke a POA at any time by creating a written revocation, notifying your agent, and informing any third parties who were relying on the original document. We may help you do so.
Do banks have to honor a Power of Attorney in South Carolina?
Generally, yes. South Carolina law requires financial institutions to accept a properly executed POA. However, there may be conditions and exceptions.
What’s the difference between POA and guardianship?
A POA is a voluntary arrangement created while the principal still has capacity, while guardianship is a court-ordered process established when someone lacks capacity and has no existing POA in place.
Contact Indigo Family Law Today About Your Power of Attorney in South Carolina
Getting a Power of Attorney doesn’t have to be overwhelming, but it does need to be done correctly. At Indigo Family Law, we understand that these decisions involve more than paperwork. We do not just help clients create POAs, but also think through the considerations that go into the creation of such consequential legal documents.
Ready to get your affairs in order? Contact Indigo Family Law today to complete a consultation with a South Carolina family law and estate planning attorney.