If you grant a power of attorney, you transfer control of all or some of your affairs to another person. The individual who takes over control is known as the agent or the attorney in fact, and is usually a family member, close friend or professional adviser. The person who signs the document is known as the principal. Powers of attorney can cover either financial affairs including bank accounts and taxation, or can deal with health care issues such as choice of treatment.
Section 62-5-501 of the South Carolina Probate Code sets out the law regarding durable powers of attorney for financial affairs. A durable power of attorney remains in force even if the principal becomes physically disabled or mentally incompetent. To be durable, the power of attorney must contain certain specific words as described in Section 62-5-501. The exact terms of the power of attorney vary according to individual circumstances but usually the document will list the scope of the agent’s duties. These might include dealing with bank accounts, signing tax returns and corresponding with insurance companies.
The principal must be over 18 when he signs the document. Powers of attorney in South Carolina should be signed in the presence of two independent witnesses. The agent may not sign as a witness, nor may any person who might benefit from the principal’s death. Powers of attorney in South Carolina should also be recorded as a public deed in the county where the principal lives at the time of signing.
Payment of the Agent
According to Section 62-5-501 (G), an agent is entitled to receive payment for his services and reimbursement of expenses. Usually the power of attorney specifies the amount and method of payment. If it does not, the probate court will decide on the agent’s payment, based upon his responsibilities and the work carried out.
Health Care Power of Attorney
Section 62-5-502 of the South Carolina Probate Code allows its residents to sign a health care power of attorney that hands over control of health-related decisions to a trusted person. A health care power of attorney only springs into effect if the principal becomes mentally incompetent and unable to make decisions for himself. In these circumstances, the agent can make decisions regarding the principal’s treatment. Section 62-5-5-2 (D) contains a statutory form for a health care power of attorney.