By Judge Irv Condon & Ayva Kunes, Esq.
As we age, it may become necessary for someone else to step forward and act in our best interests when it comes to financial and health care decision making. By designating someone to act in your place ahead of time, you may avoid the need for a guardianship or conservatorship if you become incapacitated. This can be done through a Power of Attorney (POA).
There are two types of POAs you may wish to consider a Health Care Power of Attorney (HCPOA) and a Durable Power of Attorney (DPOA).
Health Care Power of Attorney
The South Carolina Legislature has approved a HCPOA form which can be found at the South Carolina Department on Aging website (www.aging.sc.gov). This form allows you to name an agent to make medical decisions for you if you are incapacitated, and express your desires regarding life sustaining treatment.
Your agent under a HCPOA should be someone you trust, who understands your health care wishes. You can also name a successor agent to serve as a backup if your primary agent is unable to act. Once appointed, your agent will be charged with making medical decisions on your behalf only if you are unable. You may continue to make your own medical decisions so long as you are mentally competent to do so.
Your HCPOA must be signed and dated in the presence of two witnesses who must also sign. The document also needs to be notarized. Once executed, you should keep the original HCPOA in a safe place where your loved ones can access it if needed. You should also provide copies to your named agent, successor agent, close family members, and doctor.
Durable Power of Attorney
A DPOA can provide your agent with a broader range of decision-making powers. As the maker of the DPOA, a.k.a. the principal, you may choose to grant your agent as many or as limited powers as you wish. You may also choose whether the POA will only go into effect if you are incapacitated or if your agent should be able to act on your behalf regardless of your capacity. Generally, an agent under a DPOA has decision-making powers regarding the principal’s finances and property.
The statutes governing POAs are flexible regarding the powers and duties of an agent. This flexibility can be beneficial, but it may become a problem if a bad actor misuses a POA. That is why it is crucial that you carefully consider who you wish to act as your agent. Your agent should be someone who you trust will act with your best interests at heart, and not for their own benefit.
To be valid, a DPOA must meet the same requirements as an HCPOA as listed above. Additionally, a DPOA must be recorded in the register of deeds office for your county.
POAs can be very handy tools in estate planning, but they also can be taken advantage of by bad actors. When designating an agent, you should always carefully evaluate whether you trust that person to act in your best interests and not take advantage of the powers granted to them.
While this article only covers POAs, there are various other documents that should be considered to create a complete estate plan. It is important to consult an attorney to help craft the best possible estate plan for you. As Judge of the Charleston County Probate Court, I also conduct free estate planning workshops, virtually and in-person.
You can register to attend at ccprobate.charlestoncounty.org.
