South Carolina has adopted a version of the Uniform Power of Attorney Act which became effective January 1, 2017. The new act, SC Code §62-8-101, governs all Powers of Attorney that are created after January 1, 2017. While the statute significantly changes the existing rules for POAs, the statute does not provide a required statutory form to use. Additionally the Supreme Court of South Carolina still considers the preparation of a POA to be the practice of law, so real estate agents are prohibited from drafting the POA.
The most significant changes include:
1. The POA is automatically considered to be durable unless stated otherwise. This means the POA survives periods of mental incompetency of the principal. In the past, only POAs that specifically stated that it was durable were so.
2. The term “Agent” replaces the term “Attorney in Fact.” The POA will now execute documents as follows: “John Doe, by Richard Roe, his Agent.”
3. The term “incapacity” will replace the term “disability.”
4. If the POA appoints two or more people as co-agents, each person may exercise the power independently and without the agreement of the other(s), unless the POA specifically provides otherwise.
5. The agent is prohibited from making gifts, changing beneficiaries, delegating of authority or accessing safe deposit boxes unless specifically authorized. Even if authorized, the agent must be related to the principal.
6. POAs that grant general powers over real estate will automatically include the ability to buy, sell and mortgage property.
7. Note that Military Power of Attorneys are not effected by this new law.
As we have always recommended, have your client hire a South Carolina attorney to draft Power of Attorneys. A real estate agent should absolutely never draft a POA for the client. Additionally, forms found on the internet or in books are often drafted incorrectly and should be avoided.
On January 4, 2017, Blair Cato Pickren Casterline, LLC announced that Jeff Silver has joined the law firm as Special Counsel, where his practice will focus on real estate and creditor rights. Jeff represents various lenders and banks in their commercial and consumer collections, including bankruptcy. He also has numerous contacts with real estate agents in Columbia and is associated with relocation companies, which assist employees who are moving in or out of the greater Columbia area. Silver is licensed in South Carolina state and federal courts. He is a real estate broker and a South Carolina title insurance agent.
