South Carolina Healthcare Power of Attorney Requirements

Introduction

Key Things to Know

1. 1

   South Carolina requires both of your two witnesses, not just one, to individually clear nearly the full disqualification list before your Health Care Power of Attorney can name a trusted adult (the agent) to make health care decisions for you if you become unable to make them yourself.

2. 2

   South Carolina's statute calls this a durable power of attorney, but that only means it activates during incapacity. Your agent's authority does not start the moment you sign; it begins only once your mental incompetence is certified in writing (South Carolina Code Section 62-5-502(d)).

3. 3

   Incapacity is normally certified by two licensed physicians who have each examined you, but your agent's own certification may substitute for one of the two physicians (Section 62-5-502(d)).

4. 4

   Unless you limit it in the document, your agent can make any and all health care decisions for you, including consenting to, refusing, or withdrawing treatment and viewing your medical records.

5. 5

   Your agent cannot be your health care provider, an employee of your provider, an employee of a nursing facility where you live, or a spouse of any of those people, unless that person is your relative (Section 62-5-503(a)(4)).

6. 6

   You must sign in front of two witnesses. Unlike some states, South Carolina requires both witnesses, not just one, to individually meet the full list of qualifications, and no more than one of the two may be an employee of a health care facility where you are a patient (Section 62-5-503(a)(3)).

7. 7

   Notarization is optional under South Carolina's statutory form. Only an alternative, non-statutory document needs a notary to be valid (Sections 62-5-504, 62-5-517).

8. 8

   You can revoke the document at any time, in any manner that shows your intent, orally or in writing, or by signing a later Health Care Power of Attorney (Section 62-5-512).

9. 9

   South Carolina has no central state registry for Health Care Powers of Attorney. Keep the signed original and give copies to your physician, your agent, and any successor agents.

10. 10

    This is a different document from South Carolina's Durable Power of Attorney, which covers property and financial decisions, not health care.

South Carolina Requirements for Healthcare Power of Attorney

• Statutory Authority (S.C. Code Ann. Section 62-5-500 et seq.; cross-referenced by Section 44-66-30(A)(2))

  The Health Care Power of Attorney is authorized and governed by the South Carolina Statutory Health Care Power of Attorney Act, S.C. Code Ann. Section 62-5-500 et seq. The separate Adult Health Care Consent Act (Chapter 44-66), which governs surrogate consent when no agent is available, recognizes an agent appointed under this power of attorney as second in its own priority order for decision-makers (Section 44-66-30(A)(2)), and applies to a health care agent's decision-making to the extent not inconsistent with this Act (Section 62-5-502(c)).

• Formal Requirements (S.C. Code Ann. Section 62-5-503)

  The document must be substantially in the statutory form, dated and signed by the principal (or by another person in the principal's presence and at the principal's direction), and signed by two witnesses who each personally witnessed the principal's signing or the principal's acknowledgment of an already-affixed signature (Section 62-5-503(a)(1) through (3)). Each witness must individually meet the qualifications detailed in Section 62-5-503(a)(3).

• Witness Qualifications (S.C. Code Ann. Section 62-5-503(a)(3))

  Each of the two witnesses individually must not be related to the principal by blood, marriage, or adoption, not financially responsible for the principal's medical care, not entitled to any portion of the principal's estate, not a beneficiary of a life insurance policy on the principal, not named as the agent or successor agent, not the attending physician or that physician's employee, and must have no claim against the principal's estate. The only collective, rather than individual, limit is that no more than one of the two witnesses may be an employee of a health care facility where the principal is a patient.

• Notarization (Optional Under the Statutory Form) (S.C. Code Ann. Sections 62-5-503, 62-5-504, 62-5-517)

  Section 62-5-503 requires only the principal's signature and two qualifying witnesses, and the notary acknowledgment block printed on the Section 62-5-504 statutory form expressly states it 'is optional and is not required to create a valid health care power of attorney.' Notarization becomes mandatory only if the principal instead uses the alternative, non-statutory-form compliance path in Section 62-5-517, which requires a notary's attestation as one of its listed elements.

• Agent Qualifications (S.C. Code Ann. Section 62-5-503(a)(4))

  The agent must be 18 years of age or older and of sound mind. The agent may not be a health care provider, or an employee of a provider, with whom the principal has a provider-patient relationship at the time of execution, an employee of a nursing care facility in which the principal resides, or a spouse of any of those persons, unless that health care provider, employee, or spouse is a relative of the principal.

• Successor Agents (S.C. Code Ann. Section 62-5-511)

  The principal may appoint one or more successor agents who take over if an agent dies, becomes legally disabled, resigns, refuses to act, is unavailable, or, if the agent is the principal's spouse, becomes divorced or separated from the principal (Section 62-5-511(a)). If no agent or successor agent is available, willing, and qualified, decisions default to the person authorized under the Adult Health Care Consent Act.

• Agent Authority (S.C. Code Ann. Section 62-5-504)

  The statutory form grants the agent authority to consent to, refuse, or withdraw consent to any and all types of medical care, treatment, surgical procedures, diagnostic procedures, and medication, except to the extent the principal limits that authority in the document itself (Section 62-5-504, Agent's Powers).

• HIPAA Authorization (45 CFR Section 164.508)

  Federal HIPAA regulations govern how the agent can be authorized to access the principal's protected health information once the power of attorney is in effect. South Carolina's own statutory form includes a dedicated HIPAA Authorization section to this effect.

• Effective Date and Incapacity Certification (S.C. Code Ann. Sections 62-5-502(d), 62-5-504)

  The document is mandatorily effective only during a certified period of mental incompetence, with no statutory option for immediate effectiveness while the principal is competent (Section 62-5-504, Effective Date and Durability). Incapacity is determined under the Adult Health Care Consent Act's standard, ordinarily requiring certification by two licensed physicians who have each examined the principal, except that the agent's own certification may substitute for one of the two physicians (Section 62-5-502(d)). Once incapacity is certified as permanent or of extended duration for stated categories of decisions, no further re-certification is required for those categories unless the agent or attending physician believes competency has been regained.

• Revocation Provisions (S.C. Code Ann. Section 62-5-512)

  The principal may revoke the document at any time by a writing, an oral statement, or any other act constituting notification to the agent or a health care provider of specific intent to revoke, or by executing a subsequent Health Care Power of Attorney, or a subsequent durable power of attorney under Article 8 of Title 62 that states an intent to revoke or is inconsistent with the Health Care Power of Attorney (Section 62-5-512(a)). A provider informed of a revocation must immediately record it in the principal's medical record and notify the agent and other current providers (Section 62-5-512(b)).

• Statutory Form Compliance (S.C. Code Ann. Sections 62-5-503(a)(1), 62-5-517)

  Use of the exact statutory form is not mandatory; any document must be substantially in the form set forth in Section 62-5-504 (Section 62-5-503(a)(1)). Separately, Section 62-5-517 provides an alternate compliance path for a non-statutory-form document or writing that independently contains the agent's name and address, the scope of decisions authorized, the principal's signature, two qualifying witness signatures, and a notary's attestation.

• End-of-Life Decisions (S.C. Code Ann. Section 62-5-504, Sections 6 through 8 of the statutory form; Section 62-5-509)

  The Health Care Power of Attorney's own end-of-life provisions live directly in its statutory form: Section 6 addresses how the document interacts with an existing Declaration of a Desire for a Natural Death (living will), Section 7 lets the principal state desires about life-sustaining treatment, and Section 8 addresses tube feeding. Section 62-5-509 further provides that if the principal has a valid Declaration, it controls in any situation to which it applies, and the agent's authority under the Health Care Power of Attorney applies only where the Declaration does not.

• Mental Health Treatment Decisions (S.C. Code Ann. Section 62-5-504)

  Section 44-22-10 et seq. governs the rights of persons already involuntarily committed to a mental health facility; it does not address a Health Care Power of Attorney agent's authority over mental health treatment decisions. The South Carolina Health Care Power of Attorney statute (Part 5) contains no separate carve-out restricting the agent's authority over mental health treatment, and 'treatment' under the related Adult Health Care Consent Act is broadly defined to include psychiatric, psychological, and substance-abuse services.

• Organ Donation Authority (S.C. Code Ann. Section 44-43-315)

  Under the South Carolina Revised Uniform Anatomical Gift Act, an agent of the donor may make an anatomical gift on the principal's behalf during the principal's life, unless the health care power of attorney or other record prohibits the agent from doing so (Section 44-43-315(2)).

• Pregnancy Provisions (S.C. Code Ann. Section 62-5-507)

  If the principal is diagnosed as pregnant, life-sustaining procedures may not be withheld or withdrawn under the Health Care Power of Attorney during the pregnancy; the agent's authority over the principal's other obstetrical and health care during the pregnancy is otherwise unaffected (Section 62-5-507).

• Agent Compensation (S.C. Code Ann. Section 62-5-506)

  The agent is entitled to reimbursement for reasonable expenses incurred in carrying out the Health Care Power of Attorney (Section 62-5-506(a)).

• Agent Liability (S.C. Code Ann. Section 62-5-510)

  An agent who in good faith makes a health care decision under the Health Care Power of Attorney is not subject to civil or criminal liability on account of the substance of the decision (Section 62-5-510(c)). A health care provider who in good faith relies on the agent's decision, or any person who in good faith relies on a representation that someone is the named agent, is also protected from liability (Section 62-5-510(a), (b)).

• Out-of-State Recognition (S.C. Code Ann. Section 62-5-504, Administrative Provisions)

  The statutory form's own Administrative Provisions state that the Health Care Power of Attorney 'is intended to be valid in any jurisdiction in which it is presented' (Section 62-5-504, Paragraph 9(B)).

• Patient Self-Determination Act Compliance (42 U.S.C. Section 1395cc(f))

  Facilities that participate in Medicare and Medicaid must inform patients of their rights under state law to make advance directives, including a Health Care Power of Attorney.