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Jeffrey Johnson started his editorial career nearly 20 years ago as an editor and researcher for McGraw Hill and Pearson. After earning an MFA from Chapman University and his J.D. from the University of Baltimore School of Law, he combined his editorial and writing experience with his legal education. He served as the Managing Legal Editor for the websites Free Advice and Law Firm, and has been featured as a legal expert on The Manifest and Vice.
Jeffrey Johnson started his editorial career nearly 20 years ago as an editor and researcher for McGraw Hill and Pearson. After earning an MFA from Chapman University and his J.D. from the University of Baltimore School of Law, he combined his editorial and writing experience with his legal education. He served as the Managing Legal Editor for the websites Free Advice and Law Firm, and has been featured as a legal expert on The Manifest and Vice.
Adam Ramirez has been writing and editing about the law and legal issues for more than 20 years. After earning a law degree from the University of Arizona, he clerked for two years for a U.S. District Court judge. He researched and wrote legal precedent in published opinions on behalf of the Court. He previously was an editor, columnist and journalist at the Miami Herald, The Dallas Morning News, The Oregonian, Golf Digest, FindLaw.com and other media outlets.
Adam Ramirez has been writing and editing about the law and legal issues for more than 20 years. After earning a law degree from the University of Arizona, he clerked for two years for a U.S. District Court judge. He researched and wrote legal precedent in published opinions on behalf of the Court. He previously was an editor, columnist and journalist at the Miami Herald, The Dallas Morning News, The Oregonian, Golf Digest, FindLaw.com and other media outlets.
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A power of attorney (POA) is an important legal tool in which you allow someone else to make crucial decisions on your behalf. This free South Carolina power of attorney form template is customizable and allows someone else (typically called an “attorney-in-fact” or “agent”) to make financial decisions for you. Download the form below.
What Is a Power of Attorney?
A power of attorney is a legal document granting one person the right to act on behalf of another person. The person granting this authority is the principal, and the person given this power is the agent or “attorney-in-fact.”
The POA can be limited to a specific area of the principal’s life, for example, a medical power of attorney or a financial power of attorney. It can also be limited in duration or limited based on the state of the principal. If the principal becomes incapacitated, only a “durable” power of attorney will allow the agent to continue to act on the principal’s behalf.
Who Should Use a Power of Attorney Form?
Anyone who wants to ensure that a specific person has the power to act on their behalf should consider a power of attorney. A POA is a powerful, viable tool in any situation where you need someone to act for you. You don’t have to be old or sick.
That said, if someone does become incapacitated, they’re covered. Indeed, if you consult with an estate planning attorney, odds are they will discuss using a power of attorney.
How to Create a Power of Attorney in South Carolina
In order for a power of attorney to be valid in South Carolina, it must be in writing and contain all of the following:
- The name of the agent or attorney-in-fact
- The scope of the POA, meaning the rights and responsibilities the principal is assigning to the agent or attorney-in-fact
- The principal’s signature, witnessed by two people
In addition, the principal must be competent to grant the power of attorney. Being competent—sometimes called being “of sound mind”—means having sufficient mental capacity to understand what they’re doing and being able to make their own decisions.
Types of Powers of Attorney
Principals can choose from several types of powers of attorney. But, generally speaking, there are two different categories of powers of attorney:
- those based on mental soundness and
- those based on what they do and don’t cover.
Capacity-Based Powers of Attorney
Protecting assets if someone becomes incapacitated is one of the main reasons for creating powers of attorney. That’s why many POAs are designed based on the capacity of the principal.
- Durable Power of Attorney. Here, the principal intends for the authority granted to the agent to continue even after they become incapacitated. Durability is presumed in South Carolina, which means a POA will automatically remain effective if the principal becomes incapacitated or disabled.
- General Power of Attorney. A general (or “non-durable”) power of attorney can only be created when the principal is competent. If the principal becomes incapacitated, the POA is no longer effective.
- Springing Power of Attorney. Here, the POA only becomes effective if the principal becomes disabled or incapacitated. It’s also sometimes called a “standby” power of attorney.
Scope-Based Powers of Attorney
These powers of attorney are confined to a specific task or situation. They can be as narrow as a POA to sell a specific piece of property or asset. Or, they can be as broad as granting the agent the power to act in all financial matters for the principal.
The medical or health care power of attorney is perhaps the best-known scope-based power of attorney. This document grants the agent the power to make medical decisions on behalf of the principal. Typically, this is when principals cannot make those decisions themselves.
Who Can Be an Attorney-in-Fact?
Short answer: Anyone can serve as an attorney-in-fact. Also called an agent, this person should be someone you trust to make critical decisions, such as an adult child, close friend or family member. If the principal has the capacity, they choose their own agent. If they are incapacitated, the court may appoint one on their behalf.
Principals may also select alternate attorneys-in-fact in the event the primary is unavailable. However, they should not choose co-agents, which can lead to disagreements that cause delays in decision-making.
What Are the Signing Requirements for a Power of Attorney Form in South Carolina?
Signing requirements for a power of attorney differ across states. When you consider the broad powers a POA can grant, the strict requirements make sense.
In South Carolina, a POA must have two witnesses. A notary is not required, but consider getting the document notarized to ensure that there can be no questions about its validity.
Do You Need a Lawyer to Get a Power of Attorney in South Carolina?
You can use a template like the one provided above to create a perfectly legal power of attorney in South Carolina. You could even write one without a template, as long as it meets all the legal requirements.
Just because you don’t have to have a lawyer draw up your POA, though, doesn’t mean you shouldn’t. A power of attorney can give sweeping powers to the attorney-in-fact, so it’s a good idea to have a qualified lawyer review the document before signing.
Frequently Asked Questions (FAQs) About South Carolina Power of Attorney Forms
Does power of attorney end at death?
After the principal’s death, they are no longer considered to own any property and have no more rights that an agent could exercise on their behalf. Therefore, once a principal dies, the power of attorney ends.
At that time, all the rights over the deceased’s property become the responsibility of their estate and executor.
How do you take power of attorney away from someone?
Anyone besides the principal or their guardian can only take away power of attorney by petitioning the court to intervene. As the principal—or the principal’s legally-appointed guardian or conservator—you can revoke a POA at any time, as long as you are of sound mind. You need to revoke the agent’s ability to act for you in writing and the revocation must clearly state the intention to revoke the power of attorney. However, if the POA has not been registered with the office of register of deeds, it can be revoked by being destroyed with the intent to revoke it.
How do you get power of attorney if someone is incapacitated?
Power of attorney can only be granted by a principal of sound mind, so if someone becomes incapacitated, they can no longer appoint someone to be their agent. You can, however, petition the court to make you the person’s conservator or guardian. Once this appointment is made, you can act on the person’s behalf yourself or grant power of attorney to an agent to act for them.
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