WHY HIRE A LAWYER FOR DRAFTING YOUR POWER OF ATTORNEY AND MEDICAL POWER OF ATTORNEY
BY: Deborah D. Davis
The South Carolina Probate Code (click to view) underwent major changes in 2017. However, for attorneys familiar with the Uniform Probate Code, these changes are not new concepts.
Often, I find that clients or prospective clients don’t truly understand the difference between a Power of Attorney and the South Carolina Health Care Medical Power of Attorney. A Power of Attorney is when one, who is the principal, gives authority to another, who is the agent, to stand in the shoes of the principal legally speaking.
A power of attorney encompasses two bifurcations of legal concepts. First, a power of attorney is either durable or springing. A durable power of attorney is effective at the time of executing the power of attorney. A springing power of attorney is only effective upon the triggering of a specified condition such as the principal becomes incapacitated, or, the power of attorney only becomes effective on a certain date.
Secondly, a power of attorney can be general or limited. A general power of attorney basically allows broad powers for the agent to legally step into the shoes of the principal legally speaking. Unfortunately, with durable power of attorneys, misuse abounds and the agent often does not understand the fiduciary duty the agent is bound to uphold. The agent must sign an acceptance of the power of attorney to be the agent for the principal. Part of what I do is to fully explain what the agent’s fiduciary duties are. One of the most common mistakes made are commingling funds between the principal and the agent. The agent should only be an authorized signer on the account but not placed on the account as a joint owner. Moreover, once fully explained, most clients do not want a durable power of attorney once I explain such broad powers being granted to the agent. In my practice, I rarely draft durable power of attorneys for my clients as a result.
Under the revised South Carolina Probate Code, the power of attorney can simply refer to the code for authorized powers. However, I would recommend including the statute as an exhibit to the Power of Attorney drafted for the client because the code is subject to change. Rather, the more appropriate thing in my opinion is to expressly state the agent’s powers within the power of attorney instead.
By contrast, a limited power of attorney delineates certain powers to the agent. A limited power of attorney can grant broad powers almost to the extent of a durable power of attorney or be specifically narrowed to a single role such as representing the principal with respect to litigation in which the principal is involved as an example. Here, the client has the choice as to what roles the agent may step into the shoes of the principal legally speaking that tends to thwart misuse. Also, because of misuse from power of attorney with the agent, I typically curtail the agent’s authority to not grant gifts, change beneficiaries, and so forth as protective measures unless the client expressly authorizes the agent to do so.
Also, generally speaking, a power of attorney typically needs to be recorded in the county in which the principal owns real estate in South Carolina or the county in which the principal resides. I typically charge $150.00 for a power of attorney plus recording fees. If the principal only owns one real property or does not own real property, then I typically charge $25.00 in recording fees. However, for each additional property, I charge an additional $25.00. The bulk of the time is really spent on discussing the types of power of attorney and which powers the principal wants to grant to the agent.
The South Carolina Health Care Medical Power of Attorney is available online (click to download). However, the South Carolina Health Care Medical Power of Attorney is usually for when the principal is incapacitated indefinitely or terminally ill such as on one’s death bed. This point is a sticking point as most clients are unaware that this type of power of attorney is not for the interim periods when one is not terminal, incapacitated indefinitely, or both. Basically, there is a gap in a time frame of certain conditions whether the agent may assist with making medical decisions for the principal.
Most doctors and hospitals are accustomed to seeing the general form available online for free. But, what is important to note is that, the typical options to select need to be discussed with the client. Medical doctors have discussed how depriving nutrition and hydration to one in a comatose state is a fate far worse than death. Because of this reason, and the humane consequences, I never advise any option refusing hydration or nutrition. The refusal of pain medication is a personal preference due to how some feel about the use of such. However, if a person is suffering, terminally ill, or comatose without the ability to communicate, the humane option would be to limit that person’s suffering. But, that choice is a personal choice.
I have modified the South Carolina Health Care Medical Power of Attorney to encompass the more humane aspects that you will not find through the online forms or online legal services for such documents. Because the language is mostly statutory, I only charge $100.00, and mostly to explain the form to clients. Also, the form should be signed by two disinterested witnesses that cannot be family members or the agent appointed that must also be present when executing the South Carolina Health Care Medical Power of Attorney form.
By contrast, a living will dictates the principal’s desires with respect to the principal’s medical treatment when the principal is no longer able to communicate informed consent to such medical treatment. Again, with a living will, the document serves as a triggering condition that the principal be incapacitated. Again, there is a gap in a time frame of certain conditions whether the agent may assist with making medical decisions for the principal.
A power of attorney can also include the agent making medical decisions regarding the medical treatment of the principal regardless of the principal being incapacitated. Such powers granted are useful when the principal just wants a family member to deal with the doctors and nurses instead when the principal is unwell. Moreover, this grant of power in a limited power of attorney or durable power of attorney fills the gap in the time frame or meeting certain triggering conditions from the living will or South Carolina Health Care Medical Power of Attorney potentially.
The issue agents typically run into is whether the agent can direct medical treatment for the principal in that gap time frame when the triggering conditions or circumstances have not arisen. Another common issue is when the principal relocates to South Carolina and the principal’s power of attorney and Health Care Medical Power of Attorney is from another state. In that circumstance, it is critical to update the Power of Attorney and Health Care Medical Power of Attorney before the principal becomes incapacitated.
If the principal is already incapacitated, a guardianship or conservatorship may be more appropriate, which requires filing for the same before the South Carolina Probate Court. Additionally, the agent for the incapacitated principal may need to record the principal’s power of attorney in South Carolina as well.
The Dickson Davis Law Firm also provides estate planning services from simple wills to trusts. The Dickson Davis Law Firm charges $150.00 per hour for consultation regarding estate planning. For further information or details as to how these documents can best protect your interests, contact the Dickson Davis Law Firm today or book an appointment online.