Watching a loved one age or experience declining health is one of life’s most difficult transitions. It’s natural to want to respect their independence while ensuring they’re protected and cared for when it matters most.
These situations often arise with urgency and uncertainty, and without proper legal protection, families can find themselves navigating unfamiliar courts or complex decisions under stress.
A Durable Power of Attorney (DPOA) offers a clear, proactive way to protect your loved one’s interests. It can enable you to put decisions in trusted hands, avoid unnecessary guardianship, and honor your loved one’s wishes when they need you most. Read on to learn how this valuable estate planning tool can help.
Understanding Conservatorship
Conservatorship is a court-ordered legal relationship where one person is granted the authority to make decisions on behalf of an adult who can no longer manage their affairs.
This may include medical decisions, financial responsibilities, or both. The individual under conservatorship, called the ward, loses the right to make these decisions independently.
While conservatorship is designed to protect vulnerable adults, it can be time-consuming, emotionally draining, and costly. The good news is that it is often avoidable with the correct legal documents in place before incapacity occurs.
What Is a Durable Power of Attorney?
A durable power of attorney (DPOA) is a legal document that lets you appoint a trusted individual (your “agent”) to make certain decisions for you if you become incapacitated.
Unlike a regular power of attorney, a DPOA remains valid even after you can no longer make decisions. It can cover financial matters, such as managing bank accounts or paying bills, as well as healthcare decisions, like medical treatment or care preferences.
More importantly, you can choose your agent and clearly define their authority, giving you more control over your future. This can also help your loved ones act swiftly and confidently without court involvement.
How a Durable Power of Attorney Helps Avoid Guardianship
Without a DPOA, families may be forced to turn to the court for a conservatorship appointment when a loved one becomes incapacitated.
This process can be slow, expensive, and emotionally taxing. Unfortunately, it may also result in someone being appointed who doesn’t fully understand the person’s values or preferences. Conservatorships also require court supervision, adding ongoing legal oversight.
Durable powers of attorney can allow you to appoint a trusted agent in advance, potentially giving them immediate authority to make decisions and manage your affairs when you’re unable to do so. This helps avoid delays and confusion.
It also reduces the likelihood of conflict among family members and helps ensure decisions are made by someone who knows and respects your wishes. Ultimately, it can preserve your autonomy by allowing you to decide who speaks and acts for you.
Limitations and Considerations
While a DPOA is a powerful estate planning tool, it has limitations:
- Your agent’s authority is only as broad as the language in the document. If your power of attorney lacks clarity or omits key powers, your agent may be unable to take certain actions.
- Some financial institutions may also require specific wording or refuse to honor outdated documents.
- In South Carolina, if a court appoints a guardian or conservator later, that appointment could override your agent’s authority — unless your DPOA explicitly states otherwise.
- Choosing the right agent is critical. Your agent must be responsible, trustworthy, and aligned with your values. The wrong person can misuse their authority or cause unnecessary complications.
- Finally, you must have legal capacity at the time of signing. Once a person is incapacitated, it’s too late to create or revise a DPOA.
Due to these considerations, working with an experienced estate planning attorney in South Carolina is essential to help ensure the DPOA is effective and legally sound.
Legal Recognition and Variations by Jurisdiction
Powers of attorney are state-specific documents, and the rules around their creation and enforcement can vary widely.
South Carolina follows the South Carolina Uniform Power of Attorney Act (SCUPOAA), which assumes a POA is durable unless it states otherwise. The law also outlines signing requirements, including witnesses and notarization, to ensure the document is valid.
The state generally recognizes POAs created in other states so long as they meet the laws of the originating jurisdiction or specify their governing law. However, this is not always the case for conservatorship orders. A conservatorship issued in another state often must be formally re-established in South Carolina.
Steps To Establish a Durable Power of Attorney
Setting up durable powers of attorney involves a few essential steps. While every case is unique, the process generally looks like this:
- Choose Your Agent Wisely Select a trusted individual who understands your values and can manage responsibilities related to your healthcare or finances. This may be a spouse, adult child, or longtime friend.
- Determine the Scope of Authority Decide whether your agent will have broad or limited powers. You can assign different agents for healthcare and financial matters or allow one person to handle both.
- Work With an Estate Planning Attorney Your attorney will draft the DPOA to comply with South Carolina law, help ensure appropriate language is included, and help you tailor the document to your unique needs.
- Execute the Document Properly Under South Carolina law, a DPOA must be signed with the same formalities as a will, which includes proper witnessing and notarization. Your attorney can guide you through this process.
- Distribute and Store the Document Give copies to your agent and any relevant professionals or institutions. Keep the original in a secure, accessible place, and revisit it periodically to keep it current.
Don’t Leave the Future to Chance
A durable power of attorney can help you stay in control of your life, even when you’re no longer able to make decisions for yourself.
It offers a trusted alternative to conservatorship, allowing you to choose who will advocate for your needs without going through costly and complex court proceedings. More importantly, it protects your interests during challenging times and gives your loved ones peace of mind.
If you’re considering adding a power of attorney to your estate plan, don’t wait before a crisis makes it too late. Get in touch with the estate planning lawyers at Wiles Law today. We’re here to help you create a plan that reflects your values, protects your future, and spares your loved ones from unnecessary hardship.