WHY EVERYONE NEEDS A GOOD DURABLE POWER OF ATTORNEY

If you have a family member or loved one who becomes incapacitated, whether by dementia, a stroke, an automobile or work-related accident or some other injury or illness, many issues and challenges will arise as a result of their incapacity that the family will undoubtedly have to handle. These may include such things as paying their bills, dealing with their employer or retirement or social security benefits, making decisions concerning their savings and investments, maintaining their home and other assets or disposing of assets to pay for their care, handling insurance issues, their personal needs and living arrangements. These and many other situations must be dealt with because of, or in spite of, their incapacity.

Oftentimes a person who is suffering from a disabling condition may be able to understand and make decisions about their well-being and their property. But over time they may progress to the point that they are unable to understand or are unable to make or communicate their decisions. When that time arrives, a family member or other person will then be required to step in to make decisions for that person.

For purposes of being able to handle your own financial affairs and personal decision-making, South Carolina law defines an ‘incapacitated person” as a “person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, or other cause (except minority) to the extent that [such person] lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person or property.” See section 62-5-101(1), SC Code of Laws, 1976, as amended. Under our laws, when a person becomes “incapacitated”, they no longer have the legal authority to make their own decisions and handle their affairs, and someone else must do so for them. Without proper advance planning, an incapacitated person’s family will face additional hardships because of a lack of proper planning.

Just as with the need for having a last will and testament, everyone, married, single, divorced, young or elderly, rich or poor, should plan for their own disability. We hear about it so often and no matter what our age, social status, income level, health or family dynamics, disability can strike anyone at any time. If we are prepared, we can save our family and loved ones a great deal of stress, frustration, time and expense. If we are unprepared, we can cause our family all of these and more. If we do not prepare and become incapacitated, there will likely be many circumstances and instances in which no one will have the legal authority to handle and manage the personal and financial affairs that must be handled; from the day-to-day routine personal “business” that we all deal with every day in our personal lives to the unexpected, brought-on-by disability matters that must be addressed and handled because of the incapacity.

How do we prepare? For most of us, we get a good, well-drafted, all encompassing Durable Power of Attorney. What is a Durable Power of Attorney? In its simplest terms, a Power of Attorney is a legal document that you sign authorizing another person (often called an attorney-in-fact or agent) to act on your behalf and do the things that you could do in handling your property and financial affairs. Through your execution of a Durable Power of Attorney, you can appoint a person of your choosing and give them the legal authority to do something for you which they otherwise would not have the legal authority to do.

We all understand that no one has the authority to sign a deed to sell or transfer our home, no one can cash in our IRA or sell our stocks without our permission, no one can withdraw funds from our savings account, and no one can sell our cars or condo. By signing a Durable Power of Attorney, we can give someone the legal authority to do these things for us if we become unable to do them ourselves because of our incapacity. We can give them the legal authority they need to handle all our financial affairs. And, best of all, we get to choose who that person is going to be. We select the person that we trust and feel secure with giving them the authority to act for us.

So what is a "durable" Power of Attorney? A Durable Power of Attorney is one which can be used even if or when the person giving the power becomes disabled or incapacitated, which is precisely when most people need or want them to be used: when they are unable to do things for themselves. Under prior SC law, in order to be a "durable" power of attorney the document had to expressly state that the Power of Attorney was not affected by the physical disability or mental incompetence of the person executing the Power of Attorney. Now, under newer laws, it is no longer necessary to include this "magic" language in order for the Power of Attorney to be considered "durable". Now, any Power of Attorney created after January 1, 2017 is considered "durable" unless the Power of Attorney expressly provides that it terminates if the person granting the power becomes incapacitated.

We should all plan for our incapacity by executing a good Durable Power of Attorney that allows a trusted family member or friend to step in and handle our affairs should we become incapacitated. For when we fail to plan, our families and loved ones face obstacles that could have been avoided if we had planned properly. Don't fail your family by failing to plan. Next month, I'll continue this discussion and share what failing to plan often necessitates must be done when we become incapacitated.

(The information provided in this article is for informational purposes only and is of a general nature. The information should not be construed as legal advice. If you have any questions about the subject matter of this article or related matters, you should consult with a professional advisor for advice. Deirdre W. Edmonds is the former Horry County Probate Judge and is the owner of The Law Office of Deirdre W. Edmonds, PA, located at 1500 Highway 17 North, The Courtyard, Suite 213, Surfside Beach, SC 29575. The Law Office of Deirdre W. Edmonds, PA focuses on estate planning, probate administration, probate and trust litigation, disability planning and elder law. Contact Deirdre W. Edmonds via Telephone: (843) 232-0654; Website: www.dedmondslaw.com; and Email: dedmonds@dedmondslaw.com.)