Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified attorney for advice specific to your situation.
Detailed Answer
When an elderly heir faces declining capacity, you can plan ahead or, if needed, seek court intervention under South Carolina law.
Power of Attorney
South Carolina’s Uniform Power of Attorney Act (SC Code §62-5-101 et seq.) lets a principal appoint an agent to handle financial and legal matters. A durable power of attorney remains in effect if the principal becomes incapacitated. To create one, the principal must:
- Be at least 18 and of sound mind.
- Sign the document before a notary public.
- Specify powers granted—banking, real estate, investments, etc.
- Revoke any prior power of attorney by notifying the agent in writing.
For the full statute, see SC Uniform Power of Attorney Act.
Advance Health Care Directive
An advance directive under SC Code §62-5-501 et seq. allows an individual to name a health care agent to make medical decisions if they lack capacity. You must:
- Be at least 18 and of sound mind.
- Sign before two adult witnesses or a notary.
- Include preferences for life-sustaining treatment, organ donation, and comfort care.
See SC Advance Health Care Directives for details.
Guardianship
If no valid power of attorney exists or abuse is suspected, a court can appoint a guardian under SC Code §62-5-201 et seq. A guardian may oversee the person, the estate, or both. The process includes:
- Filing a petition in probate court where the person resides.
- Providing medical evidence of incapacity.
- Notifying the proposed ward, interested family members, and the public.
- Attending a court hearing before a judge.
South Carolina law encourages limited guardianship—granting only those powers needed. Read SC Guardianship Statutes for more information.
Representative Payee for Benefits
For Social Security or VA benefits, you can apply to become a representative payee. The Social Security Administration reviews the elder’s best interests and approves the payee to manage benefit payments.
Helpful Hints
- Discuss preferences with your loved one early and document decisions.
- Keep original signed documents in a safe, accessible place.
- Review powers of attorney and directives every few years.
- Consult an elder law attorney before filing for guardianship to explore less restrictive options.
- Inform banks, hospitals, and service providers when documents are in place.