Your estate plan would not be complete without having a trusted person in place to make decisions for you in case you get incapacitated. However, finding the right person for this is not easy. Unlike choosing the administrator or executor of your estate, an agent with powers of attorney can make critical decisions about your property, even while you’re still alive.
If you are looking to draft a power of attorney or you believe you’ve found yourself in a legal issue involving a power of attorney dispute, we can help. The Aiken power of attorney lawyers at Johnson, Johnson, Whittle, Lancer, and Staggs in Aiken, South Carolina can help you through the next steps to protect your future.
Call our office today at (803) 649-5338 to schedule a consultation with one of our skilled Aiken probate lawyers.
What is a Power of Attorney?
A power of attorney (POA) is a legal document that lets an individual, also referred to as the principal, grant another individual, called an attorney-in-fact or agent, a legal authority to act on their behalf. The authority ranges from managing property and finance to making healthcare decisions.
A person with the power of attorney could essentially make some of the most important decisions about your life. When done effectively, designating power of attorney will make certain that your health and overall well-being are properly managed by someone you can trust.
For this reason, all documents associated with designating power of attorney should not have any flaws. Otherwise, it could be challenged and placed in someone else’s hands. The best way to accomplish this is to have the guidance of an experienced Aiken power of attorney lawyer who understands South Carolina probate laws.
What is the Importance of Having a POA?
POA will not only give you peace of mind knowing that someone you trust can handle your affairs in case you’re unable to do so but also facilitate decision-making, avoiding potential conflict among family members during difficult times.
There are other benefits of having POA in place:
- Ensuring your wishes are followed, especially in healthcare and financial matters.
- Provides you protection in case of incapacitation, as someone you trust will handle your affairs.
- Lowers the risk of legal disputes among loved ones or family members.
- Allows for seamless financial management, ensuring continuity and minimizing disruptions.
- Ensures that your healthcare preferences are respected and followed.
- Avoids the need for court intervention, which is often a time-consuming, costly, and intrusive process.
- Allows you to define the scope of authority, along with specific instructions and limitations.
Keep in mind that you can modify or revoke a power of attorney at any time so long as you have the mental capacity to do so. This gives you some level of flexibility in case your preferences or circumstances change.
What Are the Types of Power of Attorney?
There are several types of POAs, each tailored to different needs and situations, from broad, sweeping authority to more limited and specific powers. Understanding the distinctions between these types is crucial in selecting the right POA for your circumstances, ensuring that your affairs are managed exactly as you wish.
Having an experienced Aiken power of attorney will ensure that you choose the type of power of attorney that is right for you, such as:
General Power of Attorney
This gives the agent the authority to act on your behalf in a variety of areas, including buying and selling real estate, obtaining insurance, banking, finance, and performing activities related to retirement planning.
Durable Power of Attorney
This grants the agent authority to act on your behalf in financial matters. It remains in effect until you revoke it or pass away. With a durable power of attorney, your agent can manage your finances, sign contracts, pay bills, and make other financial decisions on your behalf.
Healthcare Power of Attorney
Also called the medical power of attorney, healthcare POA gives the agent authority to make healthcare decisions on your behalf. This includes decisions about surgeries, treatments, medications, as well as end-of-life care.
Springing Power of Attorney
This is a form of durable POA, but the terms of springing POA don’t become effective until you have become incapacitated. In most cases, this is when a doctor determines that you can no longer manage your finances. In this case, you will remain in control while you have the capacity, but the POA is ready to “spring” into action once you’re incapacitated.
What Are the Legal Requirements and Considerations?
A power of attorney has to be recorded in writing. The agent who receives the rights can exercise all the powers and rights granted to them under the POA. However, the agent cannot act beyond the scope of the authorization granted to them.
The following are some of the legal requirements for a POA to be considered valid:
- The principal has to have sufficient mental capacity to create a power of attorney.
- The principal has to sign the POA in the presence of two adult witnesses.
- The POA has to be notarized before it’s considered valid in South Carolina.
- Financial POAs must be recorded in the lands office in the resident county of the principal for them to take effect upon their incapacitation.
While POAs can be useful for older adults and their families, they do have their downsides. For instance, giving someone control over your affairs could leave you prone to abuse and exploitation.
Fortunately, the agent is a fiduciary, and they can face harsh penalties in case they fail to act in their best interests. Still, it’s important to appoint someone you trust to serve as your agent.
How is a Power of Attorney Activated?
POAs usually go into effect once the principal becomes incapacitated. However, they can also go into effect in other situations.
These include:
- A set date outlined in the POA documents
- Verbal instructions
- A person is out of the country and can’t be present to sign documents
- The individual has become unable to make legal decisions on their own
A durable POA can take effect immediately upon signing, which gives the agent the authority to act on behalf of the principal right away. This way, they don’t have to wait for you to get incapacitated.
What Are the Duties of an Agent?
The responsibility of an agent includes legal and ethical obligations that come with acting in the best interest of the principal.
These include:
- Duty of loyalty: The agent must act in the best interests of the principal, even if it conflicts with their interests.
- Duty of care: The agent must act with the same level of diligence and care as a reasonable person would in the same situation.
- Disclosure: Agents must be transparent and open with the principal and keep them informed.
- Record keeping: Agents must keep accurate records of all transactions made on behalf of the principal.
- Ethical considerations: Agents must consider the ethical implications of each action.
How is a POA Revoked?
Revoking POA is relatively simple, but it has to be done correctly with the help of an Aiken power of attorney lawyer.
The steps to revoke a POA include the following:
- Determine the type of POA
- Draft a revocation document
- Notify the agent
- Dispose of the original POA
- Notify relevant third parties.
What is the Role of an Estate Planning Attorney?
When creating a POA, it’s important to consult with a lawyer who understands elder law and estate planning in South Carolina. An Aiken power of attorney lawyer will ensure that the document is compliant with the state law, customized to your needs, and addresses any concerns you may have.
Your attorney will also have the following responsibilities:
Drafting Documents
It’s the role of your Aiken power of attorney lawyer to draft POA documents that accurately reflect the principal’s wishes and comply with state laws.
Strategic Planning
Your Aiken power of attorney lawyer can advise on the strategic use of POAs within broader estate planning to ensure continuity of management and decision-making.
Addressing Complex Situations
An Aiken power of attorney lawyer will assist in addressing complex scenarios, such as appointing multiple agents, creating conditional POAs, or navigating family dynamics.
Call for Personalized Advice From an Aiken Power of Attorney Lawyer
Our experienced estate planning lawyers can help you prepare a POA that suits your goals and circumstances. Whether you need legal guidance in drafting the POA or establishing the right time for your POA to take effect, we can help.
Contact us today at (803) 649-5338 to schedule a free consultation with an Aiken power of attorney lawyer.
