Current Status Introducing Body:House Bill Number:3862 Primary Sponsor:Simrill Committee Number:25 Type of Legislation:GB Subject:Attorney, prima facie violation Residing Body:House Current Committee:Judiciary Date Tabled:19930518 Computer Document Number:BBM/10328JM.931 Introduced Date:19930406 Last History Body:House Last History Date:19930518 Last History Type:Tabled in Committee Scope of Legislation:Statewide All Sponsors:Simrill Type of Legislation:General Bill
Bill Body Date Action Description CMN Leg Involved
____ ______ ____________ ______________________________ ___ ____________
3862 House 19930518 Tabled in Committee 25
3862 House 19930406 Introduced, read first time, 25
referred to Committee
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TO AMEND SECTION 62-5-501, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE PROBATE CODE AND POWERS OF ATTORNEY, SO AS TO PROVIDE THAT A CONVEYANCE, TRANSFER, OR GIFT IN THE NAME OF A PRINCIPAL BY THE ATTORNEY IN FACT FOR THE EXCLUSIVE BENEFIT OF THE ATTORNEY IN FACT OR HIS IMMEDIATE FAMILY MEMBERS SHALL BE CONSTRUED AS A PRIMA FACIE VIOLATION OF THE FIDUCIARY DUTY OWED BY THE ATTORNEY IN FACT TO THE PRINCIPAL, PROVIDE FOR THE BURDEN OF PROOF AND STANDARD OF EVIDENCE FOR OVERCOMING THE PRESUMPTION OF THE PRIMA FACIE VIOLATION, AND TO PROHIBIT AND DISALLOW A TRANSACTION CONDUCTED BY AN ATTORNEY IN FACT FOR THE EXCLUSIVE BENEFIT OF THE ATTORNEY IN FACT OR HIS HEIRS AT LAW ON BEHALF OF AN INCAPACITATED PRINCIPAL.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 62-5-501 of the 1976 Code, as last amended by Act 306 of 1992, is further amended by adding:
"(G) Notwithstanding any other provision of law, any conveyance, transfer, or gift in the name of the principal by the attorney in fact for the exclusive benefit of the attorney in fact or his immediate family members shall be construed as a prima facie violation of the fiduciary duty owed by the attorney in fact to the principal, and the burden of proof shall be upon the attorney in fact to prove, by clear and convincing evidence, that the intent and desire of the principal was in conformity with such conveyance, transfer, or gift in order to overcome the presumption of a prima facie violation of the fiduciary duty. The presentation by the attorney in fact of an affidavit executed by the principal in the presence of two subscribing witnesses as in a deed shall be deemed clear and convincing evidence under this subsection; however, such affidavit shall not be deemed the exclusive means of establishing such clear and convincing evidence.
(H) A transaction conducted by the attorney in fact for the exclusive benefit of the attorney in fact or his heirs at law on behalf of an incapacitated principal is prohibited and shall in no case be allowed."
SECTION 2. This act takes effect upon approval by the Governor.