SC Lawyer, Jan. 2004, #5. To court or not to court: guardianship/conservatorship or durable power of attorney.

AuthorBy Franchelle C. Millender

South Carolina Lawyer


SC Lawyer, Jan. 2004, #5.

To court or not to court: guardianship/conservatorship or durable power of attorney

South Carolina LawyerJanuary 2004 To court or not to court: guardianship/conservatorship or durable power of attorneyBy Franchelle C. MillenderBecause of the public interest in protecting personal freedom, it is generally thought that less invasive methods of assisting a person with decision-making are preferable to court action. While clients are competent, they can make choices about how they want their affairs handled in the event that they become unable to make decisions regarding their person or their property. These choices may include executing a durable power of attorney for property, executing a health care power of attorney, establishing joint accounts and creating a trust.

When a person is clearly not competent and has not made advance decisions, the options are limited to a court-ordered guardianship and/or conservatorship. Unfortunately, not all clients are clearly competent or clearly incompetent, and, thus, the choices are less clear.

One of the most difficult decisions a lawyer must make is whether a client or potential client is competent. To further complicate matters, the lawyer must also decide whether the person has the degree of competency necessary to carry out a particular act. Most lawyers are at least moderately comfortable with the standard of capacity to make a will, but it is more difficult to determine capacity to execute a durable power of attorney.

A durable power of attorney is a document wherein the principal names an agent to act on the principal's behalf even if the principal becomes mentally incompetent. The principal can give very limited or very broad authority to the agent to make decisions regarding the principal's assets and can also give the agent authority to make health care decisions on behalf of the principal.

South Carolina Code § 62-5-501 authorizes the creation of a durable power of attorney. "Durable" means that the agency relationship and authority to act continue even if the principal becomes incapacitated. The statute requires language evidencing an intent that the authority of the agent is intended to continue even though the principal is physically disabled or mentally incompetent.

South Carolina Code § 62-5-504, adopted in 1992, created a Statutory Health Care...

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