What Should I Know about a Health Care Power of Attorney?
The South Carolina Health Care Power of Attorney (SCHCPOA) is a standard, legislatively drafted document that allows you to designate someone (your Health Care Agent) to interact with health care providers during times when you are unable to communicate with them yourself. The SCHCPOA also allows you to select guidelines for making medical decisions in the event you need life sustaining treatment.
There are other documents that you may consider.
The South Carolina Health Care Power of Attorney is the standard recognized by health care providers and courts in South Carolina. Although it is a standard form, it can be modified to inform your agent of your wishes. It is intended to be valid in any state in which it is presented (just in case you are travelling). If you move to a new state, you should execute the Health Care Power recognized by medical personnel in your new state.
What is the Difference Between a Power of Attorney and a Conservatorship?
When an adult is incapacitated, it is important to have someone who can help manage both the big decisions and the everyday seemingly little decisions. Sometimes folks muddle through with a spouse or child who has signing authority on a bank account, but many situations require much more than that. There are two primary ways to delegate general financial management authority:
Many people confuse powers of attorney and conservatorships. There are many differences.
Durable Power of Attorney
Any adult of sound mind can appoint someone to speak or act on his behalf through a document called a Durable Power of Attorney. The person granting the authority is called the “principal,” and the person receiving the authority is called the “agent.” (Other states’ terminology may vary.)
An agent can have broad access to the principal’s financial and personal affairs, and it is important to consider what powers to grant and what access to restrict through the Power of Attorney. Agents can usually access banking and broker accounts, deal with real estate and personal property, file taxes and arrange for housing and bill payments. An agent could even give away the principal’s property!
Some Powers of Attorney may be limited to a particular transaction, such as the sale of real estate.
An agent may be able to act immediately when the Durable Power of Attorney is signed, or the power to act may be triggered by an event such as the principal’s incapacity. The principal can define how his incapacity is determined: does incapacity require two doctors to document or can his spouse and a doctor agree that he is incapacitated?
A Durable Power of Attorney ...
A conservator is an individual with powers similar to an agent, but with constraints and oversight by a court. A conservator is appointed by a judge for an individual who has been determined to lack adequate capacity to manage her financial affairs, known as a “protected person.” A conservatorship proceeding looks and feels just like someone is being sued. All of the filing and notice requirements for a lawsuit must be followed, and the alleged incompetent individual as well as any close family members will be served with the lawsuit. Sometimes family members do not agree on who should be the conservator and the proceeding becomes adversarial.
The person pursuing the position of conservator will have to provide medical evidence that the alleged incompetent person can no longer manage his own affairs and requires someone to protect him, and that the conservator is the best qualified person to assist the protected person.
A conservator has powers granted by the court that may be greater than or more restricted than the principal would have granted under a durable power of attorney. The conservator will have to post a bond guaranteeing his honesty dealing with the protected person’s property. The conservator will have to receive approval from the court for expenditures and will report to the court annually how the protected person’s money has been used.
A judge can order that the conservatorship supersede the power of attorney in part or in whole.
It is prudent for an individual to establish a Durable Power of Attorney along with a Health Care Power of Attorney and a Will. The need for an agent or conservator can strike at any age.
Information to Help you on Your Path
What Must I Absolutely Have in Place?
Just getting that Will or Trust in place is not enough. Not having a power of attorney and a health care power of attorney can cause more turmoil in the right circumstances than not having a Will! Who should hold those powers? Should the power of attorney be springing, durable, include gifting authority, or be current? Should your agents serve together or consecutively? By asking you questions and learning your answers, Faith can help you decide these questions. See the special section a below for information and resources regarding health care powers of attorney.
Every person's situation is unique. Nothing in this website should be deemed legal advice. You should consult an attorney for information relevant to your individual situation.
Do I need a certified copy of my deed?
Many clients receive a letter in the mail suggesting they should hire someone to obtain a certified copy of their deed. Ignore this letter! You generally do not need a certified copy of your deed, and if you wanted one, you could obtain one by simply walking in the Register of Deeds office, or click here for more information if your property is in Greenville County: http://rod.greenvillecounty.org/countyweb/help/ECertification_Tutorial.pdf . If you have your original document, you do not need an additional copy.
Where can I find more information about decisions I may make in my Health Care Power of Attorney?
There are three standard options to choose from regarding treatment that is considered to be life sustaining. The first option grants discretion to the agent, the second option declines all life sustaining treatment in certain circumstances, and the third option requires maximum treatment regardless of the circumstances.
Three similar options are provided for artificial nutrition and hydration in life sustaining situations. I encourage you to explore information on hospice sites or such sites as www.webmd.com .
It is possible to create your own personalized directions in your health care power of attorney, although very few people do this. For some possible alternative wordings, please see https://lifelegaldefensefoundation.org/resources/advance-healthcare-directives/. These forms may not be up-to-date with recent changes in South Carolina law, but can be used as examples of how the statutory form can be modified. I can help you tailor the document to fit your desires.
The SCHCPOA asks whether you will make your organs and tissue available for donation at your death. You can view information about organ donation at Donate Life South Carolina: https://www.donatelifesc.org/ .
Attorney at Law
I Have a Will already. Do I need to update it?
You should review and revisit your estate plan when . . .