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Medical Power of Attorney in South Carolina: Health Care Power of Attorney and Living Will

South Carolina's medical power of attorney needs two qualified witnesses and no notary; its living will, the Declaration of a Desire for a Natural Death, needs a notary too. Here is how both work, and what happens without either.

By naveen · Updated October 13, 2026 · How we research our guides

South Carolina's medical power of attorney, called a health care power of attorney, names an agent for health care decisions and needs two qualified witnesses; the living will is the separate Declaration of a Desire for a Natural Death. The agent is the "individual designated in a health care power of attorney to make health care decisions on behalf of a principal." Under S.C. Code 62-5-503, it must "be substantially in the form set forth in Section 62-5-504," be dated and signed by your parent, and be "signed by at least two persons, each of whom witnessed either the signing of the health care power of attorney or the principal's acknowledgment of his signature." The statutory form's notary block says: "This portion of the document is optional and is not required to create a valid health care power of attorney."

What is a health care power of attorney in South Carolina?

It's the document that names an agent to make health care decisions for your parent, under the South Carolina Statutory Health Care Power of Attorney Act, S.C. Code 62-5-500 to 62-5-518. "A health care power of attorney is a durable power of attorney." Your parent must be "eighteen years of age or older and of sound mind" to make one.

Besides the powers in the document, the agent can see your parent's medical records "to the same extent that the principal would have access," contract for placement in a care facility without personal financial liability, and visit as immediate family can. The agent isn't paid, but is reimbursed for reasonable expenses. It's separate from a financial power of attorney, which has its own witness, notary and recording rules; see our South Carolina power of attorney guide.

How is it different from a living will?

The health care power of attorney names a person to decide; the living will gives your parent's own instruction on life-sustaining procedures if they are terminal or permanently unconscious.

If your parent has both, the declaration wins where it applies. Under 62-5-509, "The agent named in the health care power of attorney has authority to make decisions only in situations to which the declaration does not apply." For the general picture, see power of attorney vs. advance directive.

How do you sign a South Carolina health care power of attorney?

Your parent signs and dates the statutory form, or someone signs in their name in their presence at their direction. Two witnesses each watch the signing, or your parent's acknowledgment of the signature, and sign a declaration about their own eligibility. The form's notice puts it plainly: "THIS POWER OF ATTORNEY WILL NOT BE VALID UNLESS TWO PERSONS SIGN AS WITNESSES."

A notary is optional for a document in the statutory form. A document that isn't in the form can still qualify under 62-5-517 if it names a qualified agent, states the types of decisions, and has your parent's signature, two qualified witnesses and "the attestation of a notary public." Nobody can require your parent to sign one to get insurance, treatment or admission to a facility.

Who can't witness or serve as the agent?

Under 62-5-503, none of these people can be a witness:

• your parent's spouse, children, grandchildren and other descendants, parents and other ancestors, siblings and their descendants, or a spouse of any of them;
• a person directly financially responsible for your parent's medical care;
• anyone named in your parent's will or who would inherit without a will;
• a beneficiary of a life insurance policy on your parent's life;
• the agent or a successor agent;
• the attending physician or the physician's employee;
• anyone with a claim against your parent's estate.

If your parent is a patient in a health facility, no more than one witness may be its employee. That rules out close family, so line up eligible witnesses before the signing.

The agent must be 18 or older and of sound mind. The agent can't be a health care provider with whom your parent has a provider-patient relationship when signing, the provider's employee, an employee of the nursing care facility where your parent lives, or the spouse of any of them, "unless the health care provider, employee, or spouse is a relative of the principal."

When does the agent start making decisions?

The statutory form creates a power "effective upon, and only during, any period of mental incompetence," except for its medical records release, which works whether or not your parent is competent. Incompetence is judged by the Adult Health Care Consent Act standard: being "unable to appreciate the nature and implications of the patient's condition and proposed health care, to make a reasoned decision concerning the proposed health care, or to communicate that decision in an unambiguous manner."

Under 44-66-20, that inability "must be certified by two licensed physicians, each of whom has examined the patient," apart from an emergency exception, but under 62-5-502(d) the agent's certification can stand in for the second physician. And the form's notice is clear: "NO TREATMENT MAY BE GIVEN TO YOU OR STOPPED OVER YOUR OBJECTION IF YOU ARE MENTALLY COMPETENT TO MAKE THAT DECISION."

The form asks your parent to choose among three statements on life-sustaining treatment and three on tube feeding: leave it to the agent's judgment, withhold it, or provide it. If your parent initials none on nutrition and hydration, the agent can't direct that nutrition and hydration needed for comfort be withdrawn.

How do you sign a Declaration of a Desire for a Natural Death?

Under S.C. Code 44-77-40, your parent signs and dates the declaration "in the presence of an officer authorized to administer oaths under the laws of the state where the signing occurs and in the presence of two witnesses, one of whom may be the officer authorized to administer oaths." The witnesses sign an affidavit, sworn by at least one of them before the officer, and the form ends with a notary's certificate.

The witness exclusions mirror the health care power of attorney: no spouse, parent or other ancestor, sibling, niece or nephew or other descendant of your parent's parents, or spouse of any of them, no one financially responsible for your parent's medical care, no heirs or will beneficiaries, no life insurance beneficiaries, not the attending physician or the physician's employee, no creditor of the estate, and no more than one employee of a facility where your parent is a patient.

One rule applies in facilities. If your parent is "a patient in a hospital or a resident in a nursing care facility" when signing, the declaration must be "witnessed by an ombudsman as designated by the State Ombudsman," acting as one of the two witnesses.

When does the living will apply?

Only when two physicians who have examined your parent, one of them the attending physician, certify a terminal condition or permanent unconsciousness. A permanent unconsciousness certification can't be made until your parent has been unconscious for at least ninety consecutive days, unless brain studies or another feature of the condition allow that diagnosis "with a high degree of medical certainty," and a patient diagnosed as terminal or permanently unconscious receives active treatment for at least six hours before the physician gives effect to a declaration.

In the declaration, your parent initials whether nutrition and hydration should or shouldn't be provided by tube, separately for a terminal condition and for permanent unconsciousness. If they initial neither, "nutrition and hydration necessary for comfort care or alleviation of pain will be provided." Your parent can also name someone with authority to revoke the declaration, and someone to enforce it. The declaration isn't effective during pregnancy.

Where do you get South Carolina forms?

The statutes print both forms: the health care power of attorney in S.C. Code 62-5-504 and the declaration in 44-77-50. The South Carolina Department on Aging's legal assistance page links a health care power of attorney form in English and Spanish, and the English version is hosted on the department's own site.

The health care power of attorney form advises discussing it with the agent and physician and giving each a signed copy, and including a copy in the medical record if your parent is in a facility.

What happens if your parent has no health care power of attorney?

A guardian, a family member or another surrogate decides, in the order the Adult Health Care Consent Act sets. Under S.C. Code 44-66-30, when a patient is unable to consent, decisions may be made by these people in order:

1. a court-appointed guardian, within the guardianship's scope;
2. an agent under a health care power of attorney, within their authority;
3. a spouse, unless separated by a court order or a signed property or marital settlement agreement;
4. "an adult child of the patient, or if the patient has more than one adult child, a majority of the adult children who are reasonably available for consultation;"
5. a parent;
6. a majority of adult siblings;
7. a majority of grandparents;
8. a majority of other adult relatives believed to have a close personal relationship with your parent;
9. a person given authority by another statute;
10. a person with an established relationship with your parent who isn't a paid caregiver, who signs a notarized form.

The decision-maker follows your parent's wishes where they can be determined, and otherwise their best interest. "If persons of equal priority disagree," anyone interested may petition the probate court. Naming an agent means one chosen person decides instead of a majority of the adult children. See conservatorship and guardianship.

How do you revoke a South Carolina advance directive?

Your parent can revoke either document, and each has its own methods:

• Health care power of attorney. Your parent can revoke it "by a writing, an oral statement, or any other act constituting notification" to the agent or a health care provider, or by signing a new one. A provider told of a revocation must record it and notify the agent and the other providers. If the agent is your parent's spouse and they divorce or separate, the form's successor agents step in.
• Declaration. It can be revoked by destroying it, by a signed and dated written revocation, orally, by a designee named in it if your parent is incompetent, or by signing a new declaration. "A REVOCATION IS NOT EFFECTIVE UNTIL IT IS COMMUNICATED TO THE ATTENDING PHYSICIAN."

What about POST and EMS do-not-resuscitate orders?

South Carolina's Physician Orders for Scope of Treatment (POST) form is a set of medical orders for someone with a serious illness, signed by a physician, or an authorized advanced practice registered nurse or physician assistant. Under S.C. Code 44-80-40, a POST form, or a similar out-of-state form, "must be deemed a valid expression of a patient's wishes as to health care." It can be revoked "at any time by an oral or written statement by the patient or a patient's legal representative," and signing one is voluntary.

Separately, a patient with a terminal condition, or their health care agent or Adult Health Care Consent Act surrogate, can ask a provider for a do not resuscitate order for emergency services (S.C. Code 44-78-20).

Frequently asked questions

Does a medical power of attorney need to be notarized in South Carolina?

Not if it's in the statutory form. The form's notary section is labeled optional and "not required to create a valid health care power of attorney"; two qualified witnesses are required. A document outside the form qualifies under 62-5-517 only with a notary's attestation. The living will, the Declaration of a Desire for a Natural Death, does need a notary or other oath officer.

Can a family member witness a South Carolina health care power of attorney?

Not a close one. The witness rules exclude your parent's spouse, children and other descendants, parents and ancestors, siblings and their descendants, and the spouses of any of them, plus heirs, will and life insurance beneficiaries, the agent and the attending physician. The same kinds of people can't witness the Declaration of a Desire for a Natural Death.

Where can I get a South Carolina health care power of attorney form?

The form is printed in S.C. Code 62-5-504, and the South Carolina Department on Aging's legal assistance page links a copy in English and Spanish. The Declaration of a Desire for a Natural Death form is printed in S.C. Code 44-77-50. Give the agent and your parent's doctors signed copies.

Who makes medical decisions in South Carolina if there's no power of attorney?

The Adult Health Care Consent Act's priority list: a guardian, an agent, then a spouse who isn't legally separated, then a majority of the reasonably available adult children, then a parent, adult siblings, grandparents and other close relatives. If people of equal priority disagree, anyone interested may ask the probate court to decide.

Is an advance directive from another state valid in South Carolina?

For a living will, South Carolina recognizes a declaration that complied with the law of your parent's home state when signed and expresses substantially the same intent (44-77-30). An out-of-state health care power of attorney that doesn't meet South Carolina's requirements isn't governed by them, though a court may still apply the same law to it (62-5-502(b)).

Can my parent change their mind after signing?

Yes. While competent, your parent can revoke a health care power of attorney orally or in writing by telling the agent or a provider, and no treatment can be given or stopped over their objection. A declaration can be revoked in several ways, but only once it's communicated to the attending physician.

Getting started

A health care power of attorney only helps if it's signed while your parent can sign it, with witnesses who qualify, and the right people have copies; in South Carolina it's also the way to name one decision-maker instead of relying on a majority of the adult children. The plan this site builds asks four questions, including which state your parents live in, and puts the steps that matter most for your family in order. It's free and takes about 90 seconds.

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Sources

• S.C. Code Title 62, Chapter 5, Part 5, South Carolina Statutory Health Care Power of Attorney Act: requirements and witnesses (62-5-503), the statutory form (62-5-504), agent powers and duties (62-5-505 to 62-5-509), revocation (62-5-512) and alternate documents (62-5-517); published by the South Carolina General Assembly.
• S.C. Code Title 44, Chapter 77, Death With Dignity Act: the Declaration of a Desire for a Natural Death, signing (44-77-40), form (44-77-50) and revocation (44-77-80).
• S.C. Code Title 44, Chapter 66, Adult Health Care Consent Act: inability to consent (44-66-20) and the surrogate priority list (44-66-30).
• S.C. Code Title 44, Chapter 80, Physician Orders for Scope of Treatment: the POST form (44-80-10 to 44-80-120).
• S.C. Code Title 44, Chapter 78, Emergency Medical Services Do Not Resuscitate Order Act: do not resuscitate orders for emergency services (44-78-20).
• South Carolina Department on Aging, Legal Assistance for Older Adults: the health care power of attorney form.

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