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Bill 374

                    Current Status

Bill Number:                      374
Type of Legislation:              General Bill GB
Introducing Body:                 Senate
Introduced Date:                  19990120
Primary Sponsor:                  Land
All Sponsors:                     Land, Giese
Drafted Document Number:          l:\s-res\jcl\002dura.kad.doc
Residing Body:                    Senate
Current Committee:                Judiciary Committee 11 SJ
Subject:                          Attorneys, power of; person prohibited 
                                  from refusing to honor when executed properly; 
                                  Trusts, Estates; Probate Code


                        History

Body    Date      Action Description                     Com     Leg Involved
______  ________  ______________________________________ _______ ____________
Senate  19990120  Introduced, read first time,           11 SJ
                  referred to Committee


                             Versions of This Bill

TO AMEND PART 5, CHAPTER 5, TITLE 62 OF THE CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO POWERS OF ATTORNEY, BY ADDING SECTION 62-5-506 SO AS TO PROHIBIT A PERSON LOCATED IN THIS STATE FROM REFUSING TO HONOR A DURABLE POWER OF ATTORNEY PROPERLY EXECUTED IN ACCORDANCE WITH SECTION 62-5-501.

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

SECTION 1. Part 5, Chapter 5, Title 62 of the 1976 Code is amended by adding:

"Section 62-5-506. (A) As used in this section:

(1) the term `person' includes, but is not limited to including, an issuer, transfer agent, life insurance company, broker, financial institution, or other person; and

(2) the term 'financial institution' means each of the following: a bank, trust company, national bank, savings bank, federal mutual savings bank, savings and loan association, federal savings and loan association, federal mutual savings and loan association, credit union, federal credit union, branch of a foreign banking corporation, public pension fund, and a retirement system.

(B) No person located in this State shall refuse to honor a durable power of attorney properly executed in accordance with Section 62-5-501.

(C) No person acting on the instructions of or otherwise dealing with any person purporting to act as an agent under a durable power of attorney executed in accordance with Section 62-5-501:

(1) is responsible for determining whether the person designated as agent by the purported principal has been duly designated;

(2) is responsible for determining whether any purchase, sale, or transfer to or by or any other act of any person purporting to act in the capacity of agent under a durable power of attorney is in accordance with or authorized by the durable power of attorney; or

(3) is obliged to inquire into the validity or propriety of any instrument or instructions executed or given by a person purporting to act as an agent under a durable power of attorney.

(D) No person receiving and retaining a durable power of attorney properly executed in accordance with Section 62-5-501 or a complete photostatic copy of the properly executed original thereof nor any officer, agent, or employee of such person shall incur any liability by reason of acting upon the authority thereof unless the person shall have actually received, at the office where the account is located, written notice of the revocation or termination of such power of attorney.

(E) If a person to whom a properly executed durable power of attorney is presented refuses to honor the agent's authority under the power of attorney within a reasonable time, the person may be compelled to honor the agent's authority under the power of attorney in an action brought against the person for this purpose, except that the person may not be compelled to honor the agent's authority if the principal could not compel the person to act in the same circumstances.

(F) If an action is brought under this section, the court shall award attorney's fees to the agent if the court finds that the person acted unreasonably in refusing to accept the agent's authority under the statutory form power of attorney.

(G) For purposes of subsection (F) and without limiting any other grounds that may constitute a reasonable refusal to accept an agent's authority under a durable power of attorney, a person shall not be deemed to have acted unreasonably in refusing to accept an agent's authority if the refusal is authorized or required by state or federal statute or regulation.

(H) Notwithstanding subsection (G), a refusal to accept an agent's authority under a durable power of attorney under this part shall be deemed unreasonable if the only reason for the refusal is that the power of attorney is not on a form prescribed by the person to whom the power of attorney is presented.

(I) The remedy provided in this section is cumulative and nonexclusive.

(J) If the application of the provisions of this section shall be held invalid to any person, the application of such provisions to any other person other than those to which it is held invalid shall not be affected thereby."

SECTION 2. This act takes effect upon approval by the Governor.

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