South Carolina Healthcare Power of Attorney Requirements
South Carolina lets your own agent's certification substitute for one of the two physician sign-offs otherwise required to activate a Health Care Power of Attorney: a legal document naming someone you trust, your agent, to make health care decisions for you if you are ever unable to make them yourself.
Introduction
South Carolina lets your own agent's certification substitute for one of the two physician sign-offs otherwise required to activate a Health Care Power of Attorney: a legal document naming someone you trust, your agent, to make health care decisions for you if you are ever unable to make them yourself. In South Carolina, this document is created and governed by the South Carolina Statutory Health Care Power of Attorney Act, part of the South Carolina Probate Code at South Carolina Code Title 62, Article 5, Sections 62-5-500 through 62-5-518. This document is not a substitute for a financial power of attorney, since it only governs health care decisions. It stays out of your money, property, and bills. South Carolina's own statute describes this document as a durable power of attorney, but that word works differently here than it might sound. It simply means the document is designed to take effect only once you become mentally incompetent, and never while you are still able to decide for yourself. Your agent's authority does not begin the moment you sign. South Carolina requires you to sign the document in front of two witnesses who each personally see you sign it or acknowledge your signature. Both witnesses, not just one, must individually meet a detailed list of qualifications, and a notary is optional rather than required when you use the state's statutory form. There is no state registry to file the document with, so keep the signed original yourself and give copies to your physician and your agent.
Key Things to Know
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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
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)).
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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)).
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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.
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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
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)).
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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).
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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).
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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.
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This is a different document from South Carolina's Durable Power of Attorney, which covers property and financial decisions, not health care.
Key decisions before you file
Before you file a Healthcare Power of Attorney in South Carolina, a few decisions shape the document: which option to choose and what each one means. The Healthcare Power of Attorney guide walks through them.
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Once your Healthcare Power of Attorney is ready, you can check whether it needs to be notarized in South Carolina in about a minute, and notarize it online through DocDraft if it does.
South Carolina Requirements for Healthcare Power of Attorney
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)).
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).
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.
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.
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.
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.
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).
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.
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.
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)).
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.
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.
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.
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)).
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).
The agent is entitled to reimbursement for reasonable expenses incurred in carrying out the Health Care Power of Attorney (Section 62-5-506(a)).
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)).
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)).
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.
Does your Healthcare Power of Attorney need to be notarized in South Carolina?
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Check my Healthcare Power of AttorneyFrequently Asked Questions
A Health Care Power of Attorney in South Carolina is a legal document, created under the South Carolina Statutory Health Care Power of Attorney Act (South Carolina Code Title 62, Sections 62-5-500 through 62-5-518), that lets you name a trusted adult (your agent) to make health care decisions for you if you ever become unable to make them yourself. It covers only health care decisions, such as consenting to or refusing treatment and accessing medical records, and takes effect only once your mental incompetence has been certified in writing.
A Health Care Power of Attorney covers only health care decisions. South Carolina's general Durable Power of Attorney (South Carolina Uniform Power of Attorney Act, Title 62 Article 8) covers property and financial matters instead, such as banking or real estate. The two documents also activate differently. The Durable Power of Attorney is effective immediately upon signing unless you choose a future date or event as the trigger, and after your incapacity your agent can only act once the document is recorded with the county like a deed. The Health Care Power of Attorney has no immediate-effect option and no recording requirement. It only becomes active once your mental incompetence is certified, and it requires two witnesses rather than the Durable Power of Attorney's notarized, will-style execution.
Yes, with one exception. South Carolina requires both of your two witnesses, not just one, to individually confirm they are not related to you by blood, marriage, or adoption, not financially responsible for your medical care, not entitled to any part of your estate, not a beneficiary of a life insurance policy on your life, not named as your agent or successor agent, not your attending physician or that physician's employee, and have no claim against your estate (South Carolina Code Section 62-5-503(a)(3)). The one exception is facility employment: no more than one of your two witnesses may be an employee of a health care facility where you are a patient.
Not if you use South Carolina's statutory form. The notary block on that form is expressly optional, and South Carolina Code Section 62-5-503 only requires the principal's signature and two qualifying witnesses. Notarization becomes mandatory only if you instead use the alternative, non-statutory compliance path described in Section 62-5-517, which requires a notary's attestation as one of its elements.
No, in most cases. South Carolina law bars a person from acting as your agent while also serving as your health care provider, an employee of a provider you have a treatment relationship with, an employee of a nursing care facility where you live, or a spouse of any of those people, unless that person happens to be your relative (South Carolina Code Section 62-5-503(a)(4)).
Your attending physician follows the Adult Health Care Consent Act's standard for a patient who is unable to consent, which ordinarily requires certification in writing by two licensed physicians who have each examined you (South Carolina Code Sections 62-5-502(d), 44-66-20(8)). South Carolina allows your own agent's certification to substitute for one of those two physicians. Once a physician certifies that your incompetence is permanent or of extended duration for stated categories of decisions, no further re-certification is required for those categories unless your agent or attending physician believes you have regained capacity.
You can revoke it at any time by a writing, an oral statement, or any other act that shows your specific intent to revoke, communicated to your agent or a health care provider responsible for your care, or by signing a later Health Care Power of Attorney (South Carolina Code Section 62-5-512). A health care provider who is told about a revocation must immediately record it in your medical record and notify your agent and other current providers.
No. South Carolina does not operate a central advance-directive or Health Care Power of Attorney registry. You keep the signed original yourself and give copies to your physician, your agent, and any successor agents so they have it when needed.