South Carolina Durable Power of Attorney

Introduction

Key Things to Know

1. 1

   A durable power of attorney hands your chosen agent, also called an attorney-in-fact, authority over your money, property, and business dealings. The label durable signals that this authority endures past the point where you can no longer make your own decisions, which is exactly why most people put one in place.

2. 2

   Signing takes three separate steps, not a choice among them. S.C. Code Ann. Section 62-8-105 requires your signature (or a signature made in your presence at your direction), attestation by witnesses carrying the same formality South Carolina imposes on a will, and a notary's acknowledgment. Because Section 62-2-502 sets a will at two witnesses, your power of attorney needs two witnesses and a notary. Leave out any of the three and it is void.

3. 3

   Durability is automatic here. S.C. Code Ann. Section 62-8-104 treats a power of attorney made under the act as durable from the start, so your incapacity does not end it unless you add a clause saying it should. States that make you insert express durability language work the other way around; South Carolina flips the default in your favor.

4. 4

   To rely on it after incapacity, record it first. Under S.C. Code Ann. Section 62-8-109, your agent is blocked from acting once you are incapacitated until the document has been placed on the public record, in the same manner as a deed, in the county where you reside when it is recorded.

5. 5

   It is live the moment you sign unless you say otherwise. S.C. Code Ann. Section 62-8-109 makes a power of attorney effective on execution unless you tie it to a later date or event, such as your own incapacity. A document set to wait for that trigger is called springing.

6. 6

   A handful of powers stay off-limits unless you spell them out. Under S.C. Code Ann. Section 62-8-201 your agent can make gifts, add or change survivorship rights or a beneficiary designation, hand authority to someone else, give up a survivor annuity, or disclaim property only where the document expressly confers that power.

7. 7

   There is no state worksheet to fill in, and land transactions mean the courthouse. South Carolina issues no mandatory or optional fill-in statutory power of attorney form; the act offers only an optional agent's certification under S.C. Code Ann. Section 62-8-119. When the document is used to convey or affect real estate, it is recorded in the county where the property sits.

South Carolina Requirements for Durable Power of Attorney

• Sign Before Two Witnesses and a Notary

  Under S.C. Code Ann. Section 62-8-105, the power of attorney must be signed by you (or in your presence by another at your direction), attested with the same formality and witness requirements as a will, and acknowledged or proved before a notary. Because a South Carolina will requires two witnesses under Section 62-2-502, you need two witnesses plus notarization. All three steps are required.

• Durable by Default

  Under S.C. Code Ann. Section 62-8-104, a power of attorney created under the South Carolina Uniform Power of Attorney Act after its effective date is durable and survives your incapacity unless the document expressly provides that it terminates on incapacity. South Carolina does not require express durability language; durability is the default.

• Effective Date and Springing Powers

  Under S.C. Code Ann. Section 62-8-109, a power of attorney is effective when executed unless you provide that it becomes effective at a future date or upon a future event, such as your incapacity. A power of attorney that waits for a future event is called springing; if no one is authorized to determine incapacity, a physician or licensed psychologist makes that determination in writing.

• Record It to Use After Incapacity

  Under S.C. Code Ann. Section 62-8-109, after your incapacity the agent may exercise authority only if the power of attorney has been recorded, in the same manner as a deed, in the county where you reside at the time of recording. A power of attorney used to convey or affect real estate is also recorded where the property lies.

• No Statutory Fill-In Form

  South Carolina does not publish a mandatory or optional fill-in statutory power of attorney form. The South Carolina Uniform Power of Attorney Act provides only an optional agent's certification under S.C. Code Ann. Section 62-8-119, not a fill-in form to complete and sign. The document must be drafted to meet the act's requirements.

• Special Powers Need Express Language

  Certain high-risk powers, sometimes called hot powers, are allowed only if your document specifically grants them. Under S.C. Code Ann. Section 62-8-201, your agent may make a gift, create or change rights of survivorship or a beneficiary designation, delegate authority, waive your right to a survivor annuity, or disclaim property only when the document expressly says so.

• Agent Duties After Accepting Appointment

  Under S.C. Code Ann. Section 62-8-114, an agent who has accepted appointment must act in accordance with your reasonable expectations to the extent actually known and in your best interest, in good faith, and only within the scope of authority granted. Under Section 62-8-113, a person accepts appointment by exercising authority or otherwise acting as agent unless the document provides another method.

• Revocation Uses the Same Formalities

  Unless the document provides otherwise, S.C. Code Ann. Section 62-8-110 requires a revocation to be executed with the same formalities as the power of attorney, meaning signed, witnessed like a will, and acknowledged before a notary. If the power of attorney was recorded, the revocation must also be recorded in the same county. A power of attorney also terminates on your death.