Having a power of attorney is an important device to keep within your estate planning portfolio. It gives power to your designated attorney-in-fact when it is needed most, especially as to the signing of important papers, transfer of real estate, open opening and closing bank accounts, and making myriad health care decisions. Few would deny the fact that it is a good idea to have such a document.
And it does not mean that the person signing the power of attorney is giving up any of his or her powers. That person can exercise all rights they have as to their property at any time. It is only when the person is unavailable, whether temporarily or permanently, the benefits of the power of attorney kick in.
So it is important the power of attorney be as powerful and long-lasting as possible. But under general law, if the person signing the power of attorney, called the principal, becomes disabled whether physically or mentally, the power of attorney is no longer effective. The legal theory is that the principal must be able to change or revoke the power of attorney at any time and if this ability is lost, the instrument itself was no longer valid.
But one of the benefits of the power of attorney is to do just that: be effective after someone is disabled. After all, this is when it is needed the most. So that is why many states have special statutes that allow the agent to act after such disability. These are called “durable powers of attorney”.
One such statute is SC Code Section 62-5-501. It indicates that if the power of attorney has the phrase “This power of attorney is not affected by physical disability or mental incompetence of the principal which renders the principal incapable of managing his own estate”, then the instrument becomes permanent and will survive that disability.
So for this reason, it is very important to have this language in your document. If you already have a power of attorney without it, simply execute another power of attorney or amendments to it and insert this language.
But remember, upon the death of the principal, even with this statute or language, the power of attorney terminates. Otherwise the power of attorney would be acting as a will or trust which would not be proper.