Power of attorney, health care directive and guardianship in South Carolina

Financial power of attorney in South Carolina

Law and official form

Law

South Carolina Uniform Power of Attorney Act

Uniform Power of Attorney Act

Yes (effective January 1, 2017)

Law: S.C. Code § 62-8-101

Signing rules

How to sign

A South Carolina power of attorney must be signed, witnessed by two people as a will is, and acknowledged or proved for recording under S.C. Code § 30-5-30 (for example, acknowledged before a notary in the presence of two witnesses, or proved by a witness's sworn affidavit before a notary). Your agent can act after you become incapacitated only if the power of attorney has been recorded like a deed.

Who signs

Signed by you, or by another person you direct to sign your name in your presence.

Notary

Required

Witnesses

2

Who cannot witness

The power of attorney must be witnessed with the same formality as a South Carolina will (two witnesses who each saw you sign or saw you acknowledge your signature). The act does not list people who may not witness.

Law: S.C. Code §§ 62-8-105, 62-2-502, 30-5-30, 62-8-109(c)

Durable and springing

Is it durable?

A power of attorney created under the act is durable unless it expressly says it ends if you become incapacitated. But after you become incapacitated, the agent may use it only once it has been recorded in the same manner as a deed in the county where you live (or, if you live out of state, a county where you own property); it can be recorded before or after the incapacity.

Law: S.C. Code § 62-8-104; § 62-8-109(c)

Durable unless it says otherwise?

Yes: it continues if you lose capacity unless it says otherwise.

Starting later (springing)

A power of attorney is effective when signed unless it says it starts on a future date or event. You can name a person to decide in writing that the event happened. If it starts on incapacity and you named no one, a physician or licensed psychologist can determine in writing that you are incapacitated. After incapacity the power of attorney must be recorded before the agent can act.

Law: S.C. Code § 62-8-109

What an agent can and cannot do

Needs express permission

• Create, amend, revoke or end a trust
• Make a gift
• Create or change rights of survivorship
• Create or change a beneficiary designation
• Delegate the agent's authority
• Waive your right to be a beneficiary of a joint and survivor annuity, including a retirement plan survivor benefit
• Exercise fiduciary powers you are allowed to delegate
• Disclaim property, including a power of appointment
• Open a safe deposit box or vault you lease
• Exercise a power of appointment in favor of someone other than you
• Reject, renounce, disclaim, release or agree to reduce a share of an estate, trust or other beneficial interest
• Deal in commodity futures contracts and stock options

Agent duties, pay and court review

Agent duties

• Act according to your reasonable expectations they actually know and in your best interest
• Act in good faith
• Act only within the authority you gave
• Unless the document says otherwise: act loyally for your benefit, avoid conflicts of interest, use ordinary care, competence and diligence, keep a record of all receipts, payments and transactions, cooperate with your health care decision-maker, and try to preserve your estate plan

Agent pay

Unless the document says otherwise, the agent is entitled to repayment of reasonable expenses and to reasonable compensation.

Law: S.C. Code § 62-8-112

Asking a court to review an agent

You, the agent, your guardian or conservator, your health care decision-maker, your spouse, parent or adult descendant, a presumptive heir, a beneficiary, a government agency protecting you, a caregiver or other interested person, and a person asked to accept the power of attorney can ask a court to interpret it or review the agent's conduct. If you ask, the court must dismiss the petition if it finds dismissal is in your best interest.

Law: S.C. Code § 62-8-116

Law: S.C. Code § 62-8-114

When it ends and how to revoke it

It ends when

• You die
• You become incapacitated, if the power of attorney is not durable
• You revoke it
• The document says it ends
• Its purpose is accomplished
• The agent dies, becomes incapacitated, resigns or is revoked, and no other agent is named
• Your divorce or annulment from your agent-spouse, unless the document says otherwise
• A court appoints a guardian or conservator, for matters within the guardianship or conservatorship, unless the document says otherwise

Divorce ends a spouse's authority

Yes · Divorce rules in South Carolina (Divorce Law Map)

How to revoke

Unless the power of attorney says otherwise, a revocation must be signed and executed with the same formalities as the power of attorney itself. Signing a new power of attorney does not revoke an older one unless it says so.

Telling others

Give the revocation to the agent and to banks and others who have the power of attorney. An agent or other person who acts in good faith without actual knowledge of the revocation is protected, and those acts bind you.

If it was recorded

If the power of attorney was recorded, the revocation must also be recorded in the same county.

Law: S.C. Code §§ 62-8-110(a)-(b), 62-8-108(b), 62-2-507; S.C. Code § 62-8-110(d), (f), (g)

Banks, other states and real estate

Banks and other businesses

A person asked to accept an acknowledged power of attorney must accept it, or ask for an agent's certification, a translation or a lawyer's opinion, within 7 business days, and then accept within 5 business days after getting it. They cannot demand a different form. They may refuse for listed reasons, including a good faith belief the power is invalid, a report of suspected abuse to the state agency, or if the power of attorney does not contain (substantially) the reliance clause quoted in S.C. Code § 62-8-120(b)(7). A wrongful refusal can lead to a court order and attorney's fees and costs.

Law: § 62-8-120

Signed in another state

A power of attorney signed outside South Carolina is valid here if its signing followed the law of the place it names (or where it was signed) or the federal military power of attorney rules. To be used after your incapacity it must be recorded in South Carolina, and it may be recorded as if it met § 30-5-30. A photocopy or electronically sent copy has the same effect as the original.

Law: S.C. Code §§ 62-8-106, 62-8-109(d)

Real estate

A power of attorney must be acknowledged or proved under S.C. Code § 30-5-30, the same rule that applies to deeds and other recorded instruments. After your incapacity it must be recorded like a deed in the county where you live (or where your property is, if you live out of state) before the agent can act.

Law: §§ 62-8-105(3), 62-8-109(c)

Health care directive in South Carolina

The document and its form

Document

Health care power of attorney

Official form

Health Care Power of Attorney (statutory form)Published by South Carolina LegislatureVersion: Form for powers signed on or after January 1, 2007 (§ 62-5-504)

Living will

Declaration of a Desire for a Natural Death

The living will is a separate document.

A declaration says you do not want life-sustaining procedures to prolong dying if you are in a terminal condition or permanently unconscious. You must sign and date it in front of a notary (or other officer authorized to give oaths) and two witnesses, one of whom may be that officer, and the witnesses sign a sworn affidavit. Witness limits are similar to the health care power of attorney. If you are a hospital patient or nursing care facility resident when you sign, one of the two witnesses must be an ombudsman designated by the State Ombudsman.

Living will

Law: S.C. Code §§ 62-5-503(a)(1), 62-5-504, 62-5-517; S.C. Code §§ 44-77-40, 44-77-50

Signing rules

How to sign

Use a form substantially like the statutory form, and sign it in front of two qualified witnesses (each must see you sign or hear you acknowledge your signature) who sign the witness declaration. The notary block on the statutory form is optional. A different document is also treated as valid if it names the agent, states the types of decisions, and has your signature, two qualified witnesses and a notary's attestation.

Who signs

Dated and signed by you, or in your name by another person in your presence and at your direction.

Notary

Not required

Witnesses

2

Who cannot witness

Each witness must declare that, to their knowledge, they are not related to you by blood, marriage or adoption (as spouse, ancestor, descendant of your parents, or spouse of any of them), not directly financially responsible for your medical care, not entitled to part of your estate by will or inheritance, not a beneficiary of your life insurance, and not your health care agent or successor agent. No witness may be your attending physician or the physician's employee or have a claim against your estate. No more than one witness may be an employee of a health care facility where you are a patient.

Nursing facilities and special settings

If you are a patient in a health facility, no more than one witness may be an employee of that facility.

Law: S.C. Code §§ 62-5-503, 62-5-504, 62-5-517

Who can be your agent and what the agent can do

Who cannot be your agent

Your health care agent must be 18 or older and of sound mind. Unless related to you, the agent cannot be a health care provider (or the provider's employee) with whom you have a provider-patient relationship when you sign, an employee of a nursing care facility where you live, or the spouse of such a provider or employee.

Law: S.C. Code § 62-5-503(a)(4)

When the agent starts

The statutory form makes the health care power of attorney effective upon, and only during, any period of mental incompetence. Mental incompetence is determined under the Adult Health Care Consent Act standards for inability to consent, except that the agent's certification can substitute for a second physician's.

Law: S.C. Code §§ 62-5-502(d), 62-5-504

Source: health information can be released to the agent earlier, under Paragraph 3 of the form

Decisions an agent cannot make

If you do not initial either statement about artificial nutrition and hydration, your agent cannot have nutrition and hydration needed for comfort care or pain relief withheld or withdrawn. The agent is not paid but may be reimbursed reasonable expenses.

Law: S.C. Code § 62-5-503(b); § 62-5-506

Revoking and conflicting documents

Revoking your agent

You can revoke a health care power of attorney by a writing, an oral statement or any other act that tells your agent or a health care provider responsible for your care that you intend to revoke it, or by signing a later health care power of attorney (or a later durable power of attorney that says it revokes it or is inconsistent with it).

Law: S.C. Code § 62-5-512(a)

Revoking your instructions

A Declaration of a Desire for a Natural Death can be revoked by destroying it, by a signed and dated written revocation, by an oral statement, by a revocation from a designee named in the declaration (only if you are incompetent), or by signing a new declaration. A written or oral revocation takes effect when communicated to your attending physician.

Law: S.C. Code § 44-77-80

Telling others

A health care provider told of a revocation of a health care power of attorney must immediately record it in your medical record and notify the agent, the attending physician and your other providers.

Law: S.C. Code § 62-5-512(b)

Conflicting documents

The statutory health care power of attorney form includes a statement revoking any prior health care power of attorney and health care provisions of prior powers of attorney.

Law: S.C. Code § 62-5-504

Law: S.C. Code §§ 62-5-512, 44-77-80

If you have no directive

Who decides without a directive

This list (Adult Health Care Consent Act) applies when you are unable to consent. Decisions must follow your wishes if they can be determined, otherwise your best interest. If people with equal priority disagree, anyone interested can ask the probate court to decide or to appoint a guardian. A doctor may not give priority to someone in the parent-or-lower groups if the doctor knows you did not want that person involved.

1. A court-appointed guardian, within the scope of the guardianship
2. An attorney-in-fact under a durable power of attorney, within the scope of their authority
3. Your spouse (unless separated under a court order or a signed property or marital settlement agreement)
4. Your adult child, or a majority of your reasonably available adult children
5. A parent
6. An adult brother or sister, or a majority of them
7. A grandparent, or a majority of them
8. Another adult relative by blood or marriage believed to have a close personal relationship with you, or a majority of them
9. A person given authority by another statute
10. A person with an established relationship with you who is not a paid caregiver or provider, after the facility's good faith search; they must sign a notarized acknowledgment form

Law: S.C. Code § 44-66-30

Other states, registry and medical orders

POLST (medical orders)

Physician Orders for Scope of Treatment (POST)

Law: S.C. Code §§ 44-80-10 et seq

Guardianship and conservatorship in South Carolina

What guardianship or conservatorship is

What it is called

Guardian of an incapacitated individual (full or limited); conservator of a protected person's estate

When a court may appoint one

The court may appoint a guardian if clear and convincing evidence shows the individual is incapacitated and a guardian is needed to provide continuing care and supervision. The court must encourage maximum self-reliance and independence and may limit the guardian's powers (limited guardianship). 'Less restrictive alternatives' include powers of attorney, health care powers of attorney, trusts, representative payees, a decision-maker under the Adult Health Care Consent Act and reasonable accommodations.

Law: S.C. Code § 62-5-304; § 62-5-101

Kinds

• Full guardian
• Limited guardian
• Co-guardians
• Temporary or emergency guardian
• Conservator

Law: S.C. Code §§ 62-5-301 to 62-5-310; S.C. Code §§ 8-21-770

Who can ask, which court and your own choice

Who may ask

A person seeking a finding of incapacity or appointment of a guardian files a summons and petition in the probate court. The petition must explain why a guardianship is necessary, including why less restrictive alternatives are not available or appropriate, and list family members, any agent under a power of attorney or health care power of attorney, and recent caregivers as co-respondents.

Law: S.C. Code § 62-5-303

Court

Probate court of the county (each county has an elected probate judge)

Choosing your own

In a power of attorney you can nominate a conservator or guardian; except for good cause or disqualification, the court must follow your most recent nomination. Your agent under a power of attorney covering your care has priority after a person you nominate.

Law: S.C. Code § 62-8-108(a); § 62-5-308(A)(3)

Effect on a power of attorney

Unless the court order or the power of attorney says otherwise, appointing a guardian ends the agent's powers under a health care power of attorney or durable power of attorney for matters within the guardianship, and appointing a conservator ends the parts of the power of attorney within the conservatorship. The guardian must act consistently with your most recent advance directive.

Law: S.C. Code §§ 62-5-304(E), 62-8-108(b)

Cost, fee waiver and forms

Filing fee

Filing the initial guardianship petition costs the same as filing a civil action in circuit court; the South Carolina Judicial Branch lists the circuit court fee for new cases as $150. Conservatorship fees depend on the value of the estate.

Law: S.C. Code § 8-21-770(C)(11); § 8-21-770(B)

Forms

• Summons, probate court (520GC, 08/2021)

Steps

Steps

Other options and where to report abuse

Less restrictive options

• Less restrictive alternatives: A durable power of attorney, a health care power of attorney, a trust, a Social Security representative payee, a health care decision-maker under the Adult Health Care Consent Act, an educational representative, and reasonable accommodations such as communication help and extra time.
• Limited guardianship: The court may limit the guardian's powers; the limits are written on the guardian's letters.

Report abuse or exploitation

South Carolina Department of Social Services, Adult Protective Services · 1-888-227-3487

Call or text the Eldercare Locator to find your local adult protective services: 1-800-677-1116 · eldercare.acl.gov

Good to know in South Carolina

• A South Carolina power of attorney needs two witnesses and acknowledgment or proof before a notary, and it must be recorded before the agent can use it after you become incapacitated.

  Law: S.C. Code §§ 62-8-105, 62-8-109(c)

• Revoking a South Carolina power of attorney takes the same formalities as signing one, and a recorded power of attorney's revocation must be recorded too.

  Law: S.C. Code § 62-8-110(g)

• A living will signed in a hospital or nursing care facility needs an ombudsman as one of the two witnesses.

  Law: S.C. Code § 44-77-40(3)

• Guardianship procedures were amended by 2024 Act No. 200.

  Law: S.C. Code § 62-5-303 editor's note

Changes in 2024–2026

2024 Act No. 200 amended adult guardianship procedure in Article 5 of the Probate Code (sections 1-21 effective on the Governor's approval; sections 22-29 effective July 1, 2025). 2026 Act No. 146 (H.4189) amended the POST chapter. No 2024-2026 changes were seen in the Uniform Power of Attorney Act sections read.

Questions about powers of attorney in South Carolina