PLANNING FOR LIFE
"Planning for life" means planning for your personal care and financial needs while you are alive as opposed to "estate planning," which usually means planning for what will happen to your property and who will get it when you die. Prudent provisions for your needs, such as health and long-term care insurance and investment planning, are a part of the process. The most important legal steps are measures that allow your property to be handled should you be disabled and to provide for your spouse and family if you’re not able to do it yourself. These measures include a financial or durable power of attorney, health care power of attorney, and a living will. A living trust can also often help accomplish these goals.
A durable power of attorney appoints another person, often your spouse or another family member, to manage your financial affairs on your behalf if you are either unavailable or incapacitated, physically or mentally. These duties might include writing checks, making deposits, managing your investments, and selling your property, for instance. A durable power of attorney is effective even if you are incompetent, but is not valid after your death. It is important for most people to have a durable power of attorney, as it will normally eliminate the need for a court-approved conservator should you become mentally or physically incapacitated. Needless to say, the person given the durable power of attorney should be someone you can thoroughly trust.
A health care power of attorney is a document that names an agent to make health care decisions for you if you’re not able to make them yourself. A valid health care power of attorney can often eliminate the need for a court-appointed guardian to make these decisions for you.
The South Carolina Death With Dignity Act allows you to make a Declaration of a Desire for a Natural Death, commonly called a living will, instructing your physician to withhold or even withdraw life-sustaining procedures in the event you are in a terminal condition or a condition of permanent unconsciousness. The living will arose in response to several very well-published cases where family members of terminally ill persons could not have life-sustaining procedures terminated without a court order.
South Carolina, like many other states, has laws stating that out-of-state powers of attorney and living wills that were valid when and where they were signed are valid in South Carolina. That being said, there are many potential problems involved in using out-of-state powers of attorney. For example, we have seen powers of attorney that were executed in states requiring only one witness rejected by South Carolina real estate attorneys (since South Carolina law requires two witnesses for most real estate documents). Our advice for new residents is to replace out-of-state documents with South Carolina ones when possible.
HIPAA (Health Insurance Portability and Accountability Act) is a massive federal statute which, among other things, contains privacy provisions applicable to most medical records and health information. Unfortunately, many health care providers and facilities have interpreted HIPAA to prohibit discussion of health care issues with family members who don't have a specific written authorization. Even though this may be an overly broad reading of HIPAA, it is a major reason we feel that health care powers of attorney containing HIPAA consent provisions are a good idea.
Many times the person in your family who is adept with financial matters is not equally adept with health care decisions. It is often appropriate, for this reason, to appoint different persons as agents of the two different kinds of powers of attorney.
A springing power of attorney is one that is only effective if the person signing it is mentally incompetent or, sometimes, physically disabled. Upstate Elder Law, P.A. does not recommend springing powers of attorney due to the difficulty (in many cases) of determining whether the condition of incompetence has been satisfied. If there is doubt about this, the springing power of attorney may not be accepted without a court order declaring the person who signed it to be mentally incompetent.
No. South Carolina court has passed on this question, but as a result of legislation passed in 2005, the general opinion is that the Five Wishes document, providing it is properly signed and witnessed, can be a valid health care power of attorney in South Carolina. This doesn’t mean that everything you might say in the Five Wishes document is valid and will be literally enforced, though.
We are well aware that there are internet forms, forms available through medical providers, and the Five Wishes document that clients can use without the assistance of an attorney. You may be able to secure a valid document in this fashion. On the other hand, if you have questions or aren’t sure how to sign the document or what choices are valid, an attorney can give you advice that may ensure that your document will be valid and is likely to be enforced.
This website is designed for general information only and should not be construed to be legal advice or the formation of a lawyer/client relationship. You should consult a qualified attorney for individual advice regarding your own situation.