Can you challenge transfers made under a power of attorney if you suspect your grandfather lacked capacity?

Short answer: Yes — you can often challenge transfers made by an agent under a power of attorney (POA) if you have a good-faith belief your grandfather lacked the mental capacity to sign the POA or that the agent abused the power. In South Carolina you may challenge the validity of the POA itself or seek remedies for improper transfers (accounting, reversal, constructive trust, damages, removal of the agent). This article explains what to look for, how legal capacity is generally judged, possible claims, and practical next steps.

Disclaimer

This is general information, not legal advice. I am not a lawyer. Laws vary and outcomes depend on the exact facts. Consult a licensed South Carolina attorney before acting.

How courts evaluate capacity to execute a power of attorney

To challenge a power of attorney on the basis of incapacity, you must convince the court the principal (your grandfather) lacked the mental capacity when he signed the document. South Carolina follows the common-law standards used across most states: at the time he signed the POA your grandfather must have understood the nature and effect of the document, the general nature and extent of his property, and the identity of the people who would benefit from his decisions. If he did not understand those things, a court may find the POA invalid.

Common legal claims you can pursue in South Carolina

• Invalid POA for lack of capacity: Ask the probate or civil court to declare the POA void because the principal lacked the requisite mental capacity when it was signed.
• Undue influence: If someone pressured or manipulated your grandfather into signing the POA or into making transfers that benefited the agent, you can challenge transfers as the product of undue influence.
• Breach of fiduciary duty / fiduciary accounting: An agent acting under a POA owes duties to the principal. If the agent misused funds or made self‑dealing transfers, you can seek an accounting, reversal of transfers, damages, and removal of the agent.
• Constructive trust / restitution / conversion: Courts can impose remedies that force the agent to return improperly taken money or property.
• Guardianship or conservatorship actions: If the principal currently lacks capacity, a guardian or conservator may be appointed to protect his interests and pursue claims on his behalf.

Types of evidence that help prove lack of capacity or abuse

Successful challenges typically rely on multiple evidence types:

• Medical records and physician testimony showing cognitive impairment, dementia, delirium, or conditions that impair decision-making around the signing date.
• Testimony from witnesses who saw the signing or who interacted with the principal at the time (family, caregivers, notary, attorney).
• Timing and context: sudden changes in estate planning, transfers shortly after the POA was signed, or isolated signing meetings without independent legal advice.
• Suspicious transaction patterns: large or unusual gifts/transfers to the agent, transfers inconsistent with prior estate plans, or rapid depletion of accounts.
• Documentation problems: forged signatures, lack of proper witnessing or notarization if required, or missing attestations.

Where to bring the claim and what remedies are available

In South Carolina you typically bring civil actions in county circuit court or probate court depending on the relief requested and local practice. Possible remedies include:

• Declaration that the POA is void or voidable.
• Temporary and permanent injunctive relief to stop further transfers.
• Accounting by the agent and reversal of improper transfers; imposition of a constructive trust on assets taken.
• Removal of the agent and appointment of a guardian or conservator to protect the principal.
• Possible criminal referral for theft, exploitation of an elderly person, or fraud if the facts support criminal wrongdoing.

South Carolina law resources

South Carolina codifies property and probate statutes that govern powers of attorney and guardianship proceedings. For the text of the South Carolina Code of Laws and relevant chapters on property, probate, and guardianship, start here:

• South Carolina Code of Laws — main index (scstatehouse.gov)
• Title 62 — Property (South Carolina Code of Laws) (scstatehouse.gov)

Those pages let you locate the statutes and court rules that apply to POAs, guardianships, and fiduciary duties. If you need specific statute numbers or forms, a local attorney or the county probate court can point you to the exact provisions and filing procedures.

Practical steps to take now

1. Preserve evidence. Collect copies of the challenged POA, bank records, checks, transfer documents, emails, and any communications showing the agent’s actions.
2. Get medical records. Ask the treating physicians or the hospital for medical records around the time the POA was signed. If necessary, seek a signed release or court order to obtain them.
3. Talk to eyewitnesses. Identify and get statements from people who observed the signing, who saw conversations, or who know the principal’s usual financial behavior.
4. Contact the financial institutions. Tell banks and other institutions you have concerns. They may freeze suspicious transactions if a court order or legal process supports it, or they may flag accounts for investigation.
5. Consider an emergency guardianship petition. If your grandfather now lacks capacity and someone is depleting his assets, a temporary guardian can be appointed quickly to stop further harm.
6. Hire a South Carolina attorney experienced in elder law, probate litigation, or fiduciary litigation. Time-sensitive steps, like obtaining temporary injunctive relief, are usually best handled by counsel.

Timing and urgency

Act quickly. Improper transfers can be completed and funds dissipated. While every cause of action has its own statute of limitations, the best practice is to preserve evidence and consult an attorney as soon as you suspect wrongdoing. Courts are more willing to provide emergency relief when assets are at risk.

How a lawyer can help

An attorney will evaluate the facts for likely claims (invalid POA, undue influence, breach of fiduciary duty), gather and subpoena medical records, take depositions, file for injunctive relief or guardianship if necessary, negotiate with financial institutions, and litigate for recovery of assets or removal of the agent. Many lawyers offer initial consultations and can explain local filing procedures and evidentiary standards.

Helpful hints

• Do not confront the agent alone if you fear documents will be destroyed or tensions will escalate. Preserve evidence first and consult counsel.
• Make a timeline of events: signing date, transfers, medical appointments, visitors, and any suspicious contacts.
• Request certified copies of the POA and any notarizations or witness affidavits; these help show whether formalities were followed.
• Ask banks for transaction lists and whether the agent had authority to transfer—banks sometimes require a court order to release records, so get legal help early.
• Keep communication written when possible. Written messages create a record; later they can be used as evidence.
• If the principal still can express preferences, get a recorded or notarized statement of his wishes about agents, gifts, and transfers—that can help in court.

Challenging transfers under a POA is fact-intensive. If you suspect your grandfather lacked capacity when the POA was executed, or that the agent abused the authority, gather evidence now and consult a qualified South Carolina attorney to explore filing a challenge and protecting the principal’s assets.