South Carolina’s Legislature passed a key piece of legislation amending the Probate Code with the changes surrounding Durable Powers of Attorney.
Effective Jan. 1, 2017, the South Carolina Probate Code will include an article dedicated solely to Durable Powers of Attorney. While the new article reaffirms the majority of the already existing law, there are some key changes.
First, any power of attorney drafted after Jan. 1, 2017, will be presumed to be durable.
As it stands today, for a power of attorney to be durable, the documents must specifically state something to the effect of, “this power of attorney is durable upon execution and is not affected by incapacity.”
Second, co-agents are presumed to have the ability to act independently, unless otherwise specified.
This change is significant because it automatically deems co-agents to have independent authority to act.
Third, the statute clarifies the recording requirements for powers of attorney.
Fourth, the statute specifically addresses the gifting power.
The gifting power is one of the most important powers the Principal can grant to an Agent. It is also a power that is most easily abused. The current law does not specifically address this power, but the new statute requires specific reference in the power of attorney of this power in order to grant the power.
Fifth, the statute addresses certain changes that will affect the way powers of attorney are drafted.
Please be aware that these changes will only affect powers of attorney drafted after Jan. 1, 2017. Any powers of attorney legally drafted prior to this effective date are not rendered invalid by the new statute. You do not have to have your power of attorney redone just because the statute changed.
However, if your power of attorney is more than five to ten years old, it might behoove you to have it reviewed by a competent attorney. Similarly, if your power of attorney was drafted in a state other than the one in which you currently reside, it would not hurt to have a competent South Carolina attorney review it.
Statutes are always changing. Without change, the laws would not be able to effectively govern in an ever-changing world. This is why it is vital to avoid do-it-yourself estate planning and visit a licensed and qualified estate-planning attorney.
Rebekah N. Freeman is an associate attorney with Elder Law & Estate Planning Center.