If you want someone to be able to deposit your checks at your bank, file your taxes, or even sell or mortgage your home, you can create a handy document called a power of attorney. A POA is a simple document that grants specific powers to someone you trust—called an "agent" or "attorney-in-fact"—to handle certain matters for you.
You can make several different types of POAs in South Carolina. In particular, many estate plans include two POAs that are effective even if you become incapacitated:
In most estate plans, these POAs are what are known as "durable" POAs, which means that they retain their effectiveness even after you're incapacitated. It's a good idea for most people to create these two documents, as they help plan for the unexpected.
To learn about other types of POAs, including non-durable (limited) and springing POAs, see What Is a Power of Attorney. Below, learn how to create a durable financial POA that is valid in South Carolina.
For your POA to be valid in South Carolina, it must meet certain requirements.
The person making a power of attorney (called a "principal") must be of sound mind. Under South Carolina law, the principal must have what's known as "contractual capacity," or the mental capacity to make a contract. In other words, the principal must be able to understand the nature and consequences of making the POA. If you're helping someone make a POA and you're unsure whether they have the required mental capacity, consult an estate planning attorney.
In South Carolina, the same witnessing requirements for a will apply to POAs. This means that you must sign your POA in the presence of two adult witnesses.
You must also have your POA notarized for it to be valid under South Carolina law.
As soon as possible after you have signed your POA and had it witnessed and notarized, you should record (file) it in the land records office (the register of deeds) in the county where you reside. South Carolina is a little stricter than other states in this respect, as most other states require you to record the POA only if you are granting your agent the power to handle real estate. In South Carolina, all POAs made in 2017 and later must be recorded in order to be effective upon your incapacitation.
If you are not incapacitated, you technically don't have to record your POA right away, but it's best not to procrastinate—you don't want to risk a situation where your agent is unable to rely on your POA.
Some private companies offer forms or templates with blanks that you can fill out to create your POA. For a more user-friendly experience, try WillMaker, which guides you through a series of questions to arrive at a POA (and estate plan) that meets your specific aims and is valid in your state. You can also hire a South Carolina lawyer to create a POA for you. Many lawyers will include durable POAs as part of a more comprehensive estate plan alongside a will or living trust.
Whatever method you choose, the process of making the POA will include either granting your agent comprehensive powers or selecting, from a list, the specific powers you want your agent to have. For example, you might choose to grant your agent the power to:
In South Carolina, your power of attorney is automatically durable (meaning that it remains effective after your incapacitation) unless the document explicitly states otherwise. (S.C. Stat. § 62-8-104.)
As mentioned above, you can't just sign the POA and call it a day. You must also have the POA witnessed and notarized.
If you want your agent to be able to use your POA once you are incapacitated, you'll need to file it with the land records office (called the register of deeds in South Carolina) in the county where you live. Again, South Carolina is unique from other states in this respect.
Once you have completed the POA, store the original in a safe place that your loved ones can easily access, and let them know where to find it. (It won't do much good locked away in a safe that no one can get into.) If you become incapacitated, your agent might need the original POA to act on your behalf.
You should also give a copy of the power of attorney to your agent so that your agent is familiar with the contents of the document.
You can also give copies of your durable financial POA to banks or other institutions that your agent might need to deal with in the future. This step might eliminate some hassles for your agent if your agent ever needs to use the POA. Banks can sometimes be finicky about accepting POAs; see Can Banks Refuse a Power of Attorney? for more details.
Legally speaking, you can name any competent adult to serve as your agent. But you'll want to take into account certain practical considerations, such as the person's trustworthiness and geographical location. For more on choosing agents, see What Is a Power of Attorney.
South Carolina allows you to appoint co-agents who are authorized to act at the same time, but it's usually advisable to stick to just one agent to minimize potential conflicts. However, naming a "successor" agent—an alternate who will become your agent if your first choice is unavailable for any reason—is always a good idea, as it creates a backup plan.
Your POA is effective immediately unless it explicitly states that it takes effect at a future date.
It's possible to create a condition that must be satisfied before the POA becomes effective—such as a doctor declaring that you are incapacitated—but there are many reasons why this type of "springing" power of attorney is not usually advised.
Any power of attorney automatically ends at your death. A durable POA also ends if:
Additionally, in South Carolina, if your spouse is named as your agent in your POA, that designation automatically ends once get divorced. To be clear, your ex-spouse's authority to act as your agent ends, but your POA is still intact. So if you named a successor agent, that person would become your agent.
For more on South Carolina planning issues, see our section on South Carolina Estate Planning.