How to Make a Power of Attorney in South Carolina FAQ

What Is a Power of Attorney?

A power of attorney (POA) is a legal document where a “principal” authorizes another person as their “agent” to act on the principal’s behalf. There are different types of power of attorney documents. A financial power of attorney is a document to use when you cannot handle legal or financial matters. A health care power of attorney is a document to use when you can’t make medical decisions for yourself.

If you don’t have a power of attorney and are incapacitated, your family must petition a court for conservatorship. A court then appoints someone as your conservator who has the legal authority to manage your affairs. Your power of attorney document avoids a conservatorship action, saving your family time and money in court.

Who Can Be My Agent?

Your agent must be 18 or older and mentally competent, but they can be a family member, friend, accountant, or attorney. When choosing an agent for your power of attorney, you want someone you trust who is responsible and organized. They have a fiduciary duty to act in good faith and in your best interest.

While you may want to name two people to act as co-agents, it makes things more complicated. Your agents may disagree, and if they act jointly, nothing will get done, or if they act independently, they will contradict each other and confuse third parties. It is better to name a primary agent and a backup or successor agent to serve if your primary agent is not available.

What Can My Agent Do in South Carolina?

You decide what authority you want to grant your agent. Typically, you may want them to access bank accounts, pay bills, manage real estate, and make financial decisions. Under §62-8-204 – §62-8-217 of the South Carolina Uniform Power of Attorney Act, you can grant your agent general authority to handle the following transactions:

• Real property (real estate)
• Tangible personal property (possessions)
• Stocks and bonds
• Commodities and options
• Banks and other financial institutions
• Operation of entity or business
• Insurance and annuities
• Estates, trusts, and other beneficial interests
• Claims and litigation
• Personal and family maintenance
• Benefits from governmental programs or civil or military service.
• Retirement Plans
• Taxes
• Gifts

However, there are certain powers under §62-8-201 for which you must expressly authorize your agent because they have the power to reduce your estate. These enumerated powers are:

(1) create, amend, revoke, or terminate a trust, pursuant to Section 62-7-602A;

(2) make a gift;

(3) create or change rights of survivorship;

(4) create or change a beneficiary designation;

(5) delegate authority granted under the power of attorney;

(6) waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan;

(7) exercise fiduciary powers that the principal has authority to delegate;

(8) disclaim property, including a power of appointment;

(9) access a safe deposit box or vault leased by the principal;

(10) exercise a power of appointment in favor of someone other than the principal;

(11) reject, renounce, disclaim, release, or consent to a reduction in or modification

of a share in or payment from an estate, trust, or other beneficial interest; or

(12) deal with commodity futures contracts and call or put options on stocks or stock indexes.

Why would you want to allow your agent to reduce your estate? Perhaps to qualify you for government benefits such as Medicaid or to minimize your estate taxes. You give your agent broad powers over financial matters, so think carefully about what you want them to be able to do.

What Is a Durable Power of Attorney in South Carolina?

A durable power of attorney means your power of attorney remains effective even if you become incapacitated. In South Carolina, under §62-8-104, a power of attorney is durable unless it expressly provides that it is terminated by the incapacity of the principal.

When Is the Power of Attorney Effective?

Under §62-8-109, a South Carolina POA is effective immediately upon signature unless you specify otherwise, such as a future date or upon a future event or contingency, called a “springing” power of attorney.

When Does the Power of Attorney End?

Under §62-8-110, the power of attorney terminates when the:

• Principal dies
• Principal becomes incapacitated if the power of attorney is not durable
• Principal revokes the power of attorney
• Power of attorney provides that it terminates
• Purpose of the power of attorney is accomplished or

An agent’s authority terminates when the:

• Principal revokes the authority
• Agent dies, becomes incapacitated, or resigns
• Agent is a spouse, and the agent’s authority is revoked upon divorce, annulment, or termination of the marriage, unless the power of attorney otherwise provides or
• Power of attorney terminates

Therefore, it is always a good idea to have a backup or successor agent in your power of attorney.

Does South Carolina Have a Statutory Power of Attorney?

No. South Carolina does not have a statutory power of attorney form, but you must follow South Carolina’s laws for creation and execution. You can either make your own power of attorney document using a power of attorney form customized to your needs or hire an estate planning attorney.

Can I Make My Own Power of Attorney in South Carolina?

Yes. If you are 18 or older and competent, you can make your own power of attorney. First, make sure you know who you want as your agent and what powers you want them to have. Use state-specific forms that follow South Carolina’s execution requirements. Many people looking for self-service options use customizable online estate planning forms. However, if you have other questions about power of attorney documents, you should ask an estate planning attorney for legal advice.

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How Do I Make My Power of Attorney Valid in South Carolina?

There are specific requirements under §62-8-105 to make your power of attorney valid in South Carolina. You must sign the document or direct someone to sign it for you in your presence. Additionally, your signature must be attested by two witnesses and a notary public.

Do I Have to Notarize My Power of Attorney in South Carolina?

Yes. In South Carolina, a notary must attest the principal’s signature for a valid power of attorney.

What Should I Do After Signing My Power of Attorney?

Once signed, witnessed, and notarized, give copies to your agent and other relevant parties, and keep the original in a safe place. A bank or financial institution may ask for an agent certification form where your agent certifies that your power of attorney is effective and that they have the authority to act as your agent.

Does a Power of Attorney Agent Get Paid in South Carolina?

Your agent may be reimbursed for reasonable expenses they incur while acting under your power of attorney. They may also receive reasonable compensation for their time unless you state otherwise in your power of attorney document.

Is My South Carolina Power of Attorney Valid in Another State?

Yes. Generally, other states honor a power of attorney created and executed according to the legal requirements of that state. So, a valid South Carolina POA is valid in other states.

Can I Revoke My South Carolina Power of Attorney?

Yes. You can revoke your power of attorney as long as you are competent. To do so, write a “Revocation of Power of Attorney” statement and give it to your agent and all relevant parties. You should destroy your original POA and any copies.

What Estate Planning Documents Should I Have in South Carolina?

A financial power of attorney is a helpful estate planning document when you can’t make financial or legal decisions. It also avoids the need for a conservatorship. However, there are other estate planning documents to consider, such as a health care power of attorney and a last will and testament.

For health care decisions, a health care power of attorney can combine a medical power of attorney and a living will or advance directive. You name a health care agent to speak to health care providers, get your records, and make medical decisions for you when you can’t. You can also express your wishes for end-of-life care, such as what medical treatments or life-prolonging measures you want given or withheld.

A last will and testament is your wishes for who handles your estate, who inherits your property and assets, and who cares for your minor children. Without a will, you die “intestate,” and a probate court follows intestacy laws to distribute your property and decides who cares for your children. A will gives you control and peace of mind that your loved ones are protected.

Fortunately, with online estate planning templates, it is easy to make a valid power of attorney and create other South Carolina estate planning documents.