Greg Roberts

Greg Roberts

The durable power of attorney is one of the most effective and important planning tools for medical care and estate planning, since it enables a person (the principal) to delegate certain powers to another (the agent) by means of a written legal document. Typically, powers of attorney grant the agent specific powers to conduct financial matters for the principal. A healthcare power of attorney grants the agent the authority to make enumerated medical decisions for the principal, typically at a time with the principal is unable to do so, due to medical infirmity.

There are three different types of powers of attorney: nondurable, springing and durable. A nondurable power becomes operative immediately upon execution by the principal. It remains in effect until it is terminated (revoked) by the principal, or until the principal becomes mentally incapacitated or dies.

The durable power of attorney provides that it shall be revoked neither by the subsequent incapacitation of the principal, nor by the passage of time. The principal can alter or terminate a durable power of attorney at any time prior to the onset of mental or physical incapacity. Naturally, death of the principal terminates a durable power of attorney.

Springing powers of attorney become effective at a future date: the power “springs up” into existence upon the occurrence of a specific event, such as the illness or disability of the principal. The problem with springing powers that take effect when the principal is disabled is that it may be difficult to establish conclusively that the disability has actually occurred.

The greatest advantage of the durable power of attorney is that it remains in effect after the principal has become impaired. The agent can act right away to manage assets in a down market or take emergency measures without having to seek the court’s approval to do so. It usually is a good idea to draft a different power of attorney document for financial matters and another, separate document, for those powers pertaining to healthcare decisions. In most states, including South Carolina, it is a requirement that those powers be separately granted in different documents.

Families should have this document drafted, executed and in place, long before a person starts having trouble handling certain aspects of life. At the time of the signing, the person establishing a durable power of attorney must be capable of deciding to seek assistance. For example, people in late stages of an illness such as Alzheimer’s may not be "of sound mind" and therefore unable to appoint a person to hold the durable power of attorney at that time.

In the absence of a durable power of attorney, family and friends would be precluded from making many important financial decisions, pay bills or make important healthcare decisions on behalf of the loved one. In addition, they would be unable to engage in crucial Medicaid planning. Anyone who wishes to undertake these tasks would have to go to court and be officially appointed the person's guardian.

The drafting of a Durable Powers of Attorney in South Carolina requires the same legal procedures as does the proper preparation of a will: each such document must be executed and witnessed and duly registered with the court.

For this reason and many others, I recommend that you always consult with your local attorney regarding all types of powers of attorney.

Greg Roberts is a certified financial planner with 35 years of financial and estate planning experience. Do you have a financial planning question for Greg? Email him at greg@lifesolutionsonline.net.