S*366 Session 105 (1983-1984)
S*0366(Rat #0400, Act #0353 of 1984) General Bill, By H.E. McDonald
A Bill 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.
03/23/83 Senate Introduced and read first time SJ-777
03/23/83 Senate Referred to Committee on Judiciary SJ-777
02/08/84 Senate Committee report: Majority favorable, minority
unfavorable Judiciary SJ-599
02/16/84 Senate Read second time SJ-679
02/28/84 Senate Read third time and sent to House SJ-773
02/29/84 House Introduced and read first time HJ-1128
02/29/84 House Referred to Committee on Judiciary HJ-1128
04/11/84 House Committee report: Favorable Judiciary HJ-2308
04/17/84 House Read second time HJ-2429
04/18/84 House Read third time and enrolled HJ-2472
04/26/84 Ratified R 400
04/30/84 Signed By Governor
04/30/84 Effective date 04/30/84
04/30/84 Act No. 353
05/10/84 Copies available
(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. |