South Carolina Powers of Attorney
Effective on January 1, 2017, South Carolina enacted incorporations and amendments to its South Carolina Uniform Power of Attorney Act (Act). This was done largely by adopting large provisions of the Uniform Power of Attorney Act (UPOAA) while noting some key differences. Section I will provide a brief outline of the foundations of the power of attorney under the Act. Following thereafter, Section II will briefly cover the South Carolina Statutory Health Care Power of Attorney Act.
The Act essentially covers two areas of interest: powers of attorney (other than health care powers) and health care powers of attorney.
SECTION I
Powers of Attorney Exclusions
Due to the complexities of the powers of attorney, South Carolina has decided to exclude certain actions from the Act. These actions have been deemed to have an inherent conflict with the Act’s provisions and therefore will not be incorporated into its protections. The following are excluded:
- Power coupled with an agent interest in the subject of the power;
- Delegation of power to exercise voting or management rights of an entity;
- Power created on a form prescribed by a governmental entity or for a governmental purpose;
- Power created on a form provided by a financial institution or brokerage firm relating to an account therein and is intended for the sole, internal use.
Durability and Jurisdiction
Previously, unless it was expressly stated, the power of attorney was not the default conclusion. However, South Carolina has now reversed this rule. A power of attorney granted on or after the effective date of the Act will be considered durable – post incapacitation of the principal – by default. This was done to protect the principal from guardianship or conservatorship.
Additionally, unless stated in the granted power of attorney, the jurisdiction that holds power will be “the law of the jurisdiction in which the power of attorney was executed.” This is of notable importance since the Act allows a jurisdiction to be written into the power but prescribes a default should one not be designated.
Access
Powers of attorney are normally granted to an agent to protect the interests of the principal is incapacitated for one reason or another. Some of these power of attorneys are based on contingent events occurring fist as the trigger the powers effective. However, incapacity may occur at any given moment.
In order to protect the principal, South Carolina has enacted several forms in which a power of attorney based on a contingency which fails to mention the determination basis of incapacity may become effective. Due to the nature of the event, the principal may not be able to access his or her records. Therefore, pursuant to Health Insurance Portability and Accountability Act and Section 1171-1179 of the Social Security Act, the individual may act as the principal’s personal representative in communications with the principal’s health care provider and have access to the principal’s health care records.
Termination
The power of attorney may be terminated willingly by the principal or terminate with several triggering events. Moreover, the power of attorney does not become “stale;” unless expressly stated, there is no temporal limitation on the power of attorney.
SECTION II
Durability and Relation to Other Law
The South Carolina Statutory Health Care Power of Attorney Act makes a health care power of attorney a durable power of attorney. However, many forms of interpretations may affect the health care power of attorney. Therefore, three noteworthy limitations have been placed.
Firstly, to the extent that statutory provisions and judicial interpretations are not inconsistent with this Act, they may apply to the health care power of attorney. Secondly, to the extent that it is not inconsistent with this section, the Adult Health Care Consent Act applies to the making of decisions by health care agents. Lastly, the provisions of this section do not apply to nonconforming durable powers (i.e. powers emanating from another state). However, as a notable work around, a court may find that nonconforming powers are the same as the law herein.
Requirements
Certain requirements were created in order to minimize potential conflicts of interest. The following requirements must be satisfied in order to establish a health care power of attorney:
- Be substantially in form set forth in Section 62-5-504 (please see link below for directions to this section);
- Be dated and signed by the principal or in the principal’s name by another at his behest and within his presence;
- Be signed by at least two witnesses, each of whom witnessed the signing by the principal or of the principal’s name by another in line with the previous requirement; and
- State the name and address of the agent.
The Act also delineates certain restrictions for the agent. The agent must be 18 years old and of sound mind. Additionally, the agent may not be an individual of a provider with whom the principal has a provider-patient relationship. This is chiefly to protect the interests of the principal from possible conflicts of interests. However, an exception was created. Should the individual be a relative of the principal, he or she may act as a health care agent.
The link provided below can be referenced read further the Act as a whole. It is important to note that within this link is also the template (Section 62-5-504) which must be substantially followed in order to execute a health care power of attorney. http://www.scstatehouse.gov/sess121_2015-2016/prever/778_20160602.htm
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