Bill 366

                    Current Status

Bill Number:               366
Ratification Number:       400
Act Number:                353
Introducing Body:          Senate
Subject:                   Relating to the durable power of
                           attorney

(A353, R400, S366)

AN ACT TO AMEND ACT 393 of 1978, RELATING TO THE DURABLE POWER OF ATTORNEY, SO AS TO PERMIT THE USE OF WORDS SIMILAR IN INTENT TO THOSE NOW SPECIFIED IN AN INSTRUMENT ESTABLISHING A DURABLE POWER OF ATTORNEY, TO PROVIDE FOR THE APPOINTMENT OF SUCCESSOR ATTORNEYS IN FACT, TO REQUIRE THE INSTRUMENT TO BE RECORDED IN THE COUNTY IN WHICH THE PRINCIPAL RESIDES AT THE TIME OF RECORDING AND TO MAKE THE INSTRUMENT EFFECTIVE REGARDLESS OF THE TIME OF RECORDING, AND TO PROVIDE THAT A PROBATE JUDGE MAY REQUIRE AN ATTORNEY IN FACT TO POST A SURETY BOND THAT WOULD BE APPLICABLE IN THE CASE OF AN INTESTATE'S ESTATE.

Be it enacted by the General Assembly of the State of South Carolina:

Durable power of attorney

SECTION 1. Section 1 of Act 393 of 1978 is amended to read:

"Section 1. Whenever a principal designates another his attorney in fact by a power of attorney in writing and the writing contains the words 'This power of attorney shall not be affected by physical disability or mental incompetence of the principal which renders the principal incapable of managing his own estate', or similar words showing the intent of the principal that the authority conferred is exercisable notwithstanding his physical disability or mental incompetence, the authority of the attorney in fact is exercisable by him as provided in the power on behalf of the principal notwithstanding later disability or mental incompetence of the principal. All acts done by the attorney in fact pursuant to the power during any period of disability or mental incompetence have the same effect and inure to the benefit of and bind the principal or his heirs, devisees, legatees, and personal representative as if the principal were mentally competent and not disabled. An instrument to which this act is applicable may also provide for successor attorneys in fact and provide conditions for their succession, and the succession may occur whether or not the principal is then physically disabled or mentally incompetent. The attorney in fact has a fiduciary relationship with the principal and is accountable and responsible as a fiduciary. The appointment of a power of attorney under this act shall not prevent a person or his representative from applying to the court and having a committee appointed after which the power of attorney shall become inoperative. A power of attorney executed under the provisions of this act must be executed and attested with the same formality and with the same requirements as to witnesses as a will. In addition, the instrument must be probated and recorded in the same manner as a deed in the county where the principal resides at the time the instrument is recorded. After the instrument has been recorded, whether recorded prior to or after the onset of the principal's physical disability or mental incompetence, it is effective notwithstanding the mental or physical disability. Unless the instrument provides otherwise, the probate judge may, in his discretion, and at any time after the onset of mental disability, on motion of any interested party or his own motion, require that an inventory of all deposits, choses in action, and personal property be filed with the court and a surety bond be posted by the attorney in fact in the manner and amount that would be applicable to an intestate's estate."

Time effective

SECTION 2. This act shall take effect upon approval by the Governor.