Vol. 3, No. 6, Pg. 15. The Basics of Durable Powers of Attorney.

• Author: By Patricia L. Harrison

South Carolina Lawyer

1992.

Vol. 3, No. 6, Pg. 15.

The Basics of Durable Powers of Attorney

15The Basics of Durable Powers of AttorneyBy Patricia L. HarrisonDuring a discussion about durable powers of attorney, my client looked puzzled. When I asked if he had a question about the document, he answered, "What the hell is an adorable power of attorney?"

Powers of attorney have been around for a long time and should be a part of every lawyer's legal arsenal. Every state now authorizes powers of attorney, called durable powers of attorney, which are effective after the principal has become incapacitated. The low cost and ease with which such a power of attorney can be executed almost always makes it the preferable alternative to having the probate court appoint a conservator and a guardian.

This article will discuss issues related to general durable powers of attorney. Powers of attorney for health care are discussed in a separate article on page 22.

When does the power of attorney become effective?

Powers of attorney can be drafted to become effective only after the principal has become incapacitated (this is known as a "springing power"), or they can be drafted so that the agent can act whether or not the principal is incapacitated. If the power of attorney requires that the principal be incapacitated before the agent can act, it is a good idea to define incapacity in the document. The power may require the agent to obtain a court determination of the principal's incapacity. Alternatively, the power may define incapacity as occurring when, for example, two physicians certify that the principal, as a result of illness, age or other cause no longer has the capacity to act prudently or effectively in financial affairs. Obviously, it is simpler if the power allows the agent to act without court authority or the certification of physicians.

Does the power of attorney have to be recorded?

The Probate Code requires that the power of attorney be recorded "in the same manner as a deed" in the county where the principal resides. S.C. Code Ann. § 62-5-501(C). It is not necessary, however, to record the power of attorney before the onset of the principal's incapacity. The power can be recorded either before or after incapacity occurs.

If the power of attorney "relates solely to the person of the principal," as opposed to his or her financial...