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It is always a good practice to have out-of-state legal documents reviewed when you establish a new domicile and it is not unusual for there to be problems with a document.
The concept of a durable power of attorney was first adopted into the Uniform Probate Code in 1969 as a modest means of planning for surrogate decision making. Wealthy families had long relied on trusts. Over the years many issues arose with use of the documents that required clarification. Effective January 1, 2017 South Carolina adopted many of the updated provisions of the Uniform Probate Code to govern financial powers of attorney. Provisions in the new code grandfathered in the validity of previously executed powers of attorneys and those created in other states that conformed to the law of the other jurisdiction in which its meaning and effect would be determined. That being said, one problem could be the copy you took to the bank was not certified or the certified copy was old. Normally banks like to see certification within six months of the date of presentment. The original could be re-recorded in the county where Mom now lives and must be recorded if she is no longer competent. I recommend a notarized Affidavit be attached as a cover that states Mom now resides in Aiken County, South Carolina and she can then sign to ratify the prior document as written. The Affidavit will not cure any defects in the underlying document or a current inability for her to sign if she is no longer competent.
There is a section in the new code outlining how and for what reasons a bank or person can refuse to accept a power of attorney. The law requires that the bank either acknowledge or request a certificate, a translation or opinion of counsel within seven business days of presentment. Upon receipt of the certification or opinion the bank then has five business days to accept the power of attorney as valid. The bank is not required to accept the document if it knows the principal has revoked the authority of the agent or knows someone has in good faith reported to an appropriate state agency possible physical or financial abuse, self-neglect, exploitation, or abandonment by the agent of his or her duties. Of course the authority the agent is trying to utilize to transact business on behalf of the principal must be expressly permitted under the terms of the document. There are other good faith grounds listed in the statute for denying acceptance of a power of attorney.
Failure to acknowledge a valid power of attorney can be grounds for a court order and the award of all attorney’s fees and expenses.
Let an attorney review the facts of your situation and review your mother’s existing power of attorney. It may be an easy fix or a more complex situation. New powers of attorney prepared in South Carolina require specific language and should be prepared by those that stay current in this area of the law.
Disclaimer: Information contained in this column is meant to be of general information on frequently asked questions concerning disability, elder law, VA benefits, estate planning and probate law, and does not contain specific legal advice to a client. No attorney-client relationship is created by reading this column. 11/2018
WRITTEN BY LINDA KNAPP
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