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Power of Attorney in South Carolina: Witnesses, Notary, Recording and How to Get One
A South Carolina power of attorney needs two witnesses and a notary, and it has to be recorded with the county before the agent can use it after incapacity. Here is what the Uniform Power of Attorney Act requires.
By naveen · Updated · How we research our guides
What to know
- A South Carolina power of attorney must be signed by your parent, witnessed the way a will is (at least two witnesses), and acknowledged or proved before a notary or other officer (S.C. Code 62-8-105).
- It's durable by default, but once your parent is incapacitated, the agent can act only after it's recorded like a deed in the county where your parent lives (62-8-109(c)).
- Banks must accept it, or ask for more information, within seven business days, unless it lacks a reliance clause the statute spells out word for word.
- Retirement Checklist turns your parent's situation into a short, ordered plan, so the power of attorney sits in the right place among everything else.
A South Carolina power of attorney must be signed by your parent, witnessed by two people the way a will is, and acknowledged before a notary, then recorded with the county before the agent uses it after incapacity. Under S.C. Code 62-8-105, it must be signed by your parent, "attested with the same formality and with the same requirements as to witnesses as a will in South Carolina," and "acknowledged or proved pursuant to Section 30-5-30." The recording rule is in 62-8-109(c).
What is a durable power of attorney in South Carolina?
A durable power of attorney is one that isn't ended by your parent's incapacity, and in South Carolina every power of attorney is durable unless it says otherwise. The law is the South Carolina Uniform Power of Attorney Act, S.C. Code 62-8-101 to 62-8-403, in effect since January 1, 2017. A power of attorney is "a writing or other record that grants authority to an agent to act in the place of the principal." Your parent is the principal, and the agent "is a fiduciary."
Under 62-8-104, a power of attorney "is durable unless it expressly provides that it is terminated by the incapacity of the principal." A power of attorney signed before 2017 stays valid if it met the law at the time it was signed. For reasons to sign one while your parent still can, see our guide to power of attorney for an elderly parent.
What does South Carolina require for a power of attorney to be valid?
Three steps: your parent's signature, two witnesses under the rules for wills, and an acknowledgment or sworn proof before a notary or other oath officer (62-8-105).
| Step | What the law says | Statute |
|---|---|---|
| Signature | Signed by your parent, or by someone in their presence at their direction | 62-8-105(1) |
| Two witnesses | Same formality and witness rules as a will; a will needs at least two witnesses | 62-8-105(2), 62-2-502 |
| Notary or other officer | Your parent acknowledges it, or a witness swears to the signing, before an officer who can administer oaths, such as a notary | 62-8-105(3), 30-5-30 |
The will rule in S.C. Code 62-2-502 calls for a will to be "signed by at least two individuals each of whom witnessed either the signing or the testator's acknowledgment of the signature or of the will." The recording statute, 30-5-30, lets an instrument be proved "by the affidavit of a subscribing witness" or acknowledged "in the presence of two witnesses," either way before "some officer within this State competent to administer an oath."
Article 8 doesn't list people who can't witness a power of attorney. A South Carolina notary can't notarize unless the signer or witness is in the notary's presence, and can't notarize a record the notary signs, is a party to, or benefits from (S.C. Code 26-1-90).
Does a South Carolina power of attorney need to be recorded?
To be used after incapacity, yes. Under S.C. Code 62-8-109(c), "After the principal's incapacity, an agent may exercise the authority granted unto the agent under the power of attorney only if the power of attorney has been recorded in the same manner as a deed in the county where the principal resides at the time the instrument is recorded."
It "may be recorded before or after the principal's incapacity," but "After the principal's incapacity and before recordation, the agent's authority cannot be exercised." If your parent lives out of state, it can be recorded in any South Carolina county where they own property. Because the statute allows recording before incapacity, the agent doesn't have to wait on the county after a crisis. Recording also affects revocation: if a recorded power of attorney is revoked, the revocation must be recorded in the same county.
Is there an official South Carolina power of attorney form?
No. South Carolina's Article 8, as printed on the General Assembly's site, doesn't include a fill-in statutory power of attorney form. The only form in it is an optional agent's certification that the agent can sign to confirm the power of attorney is still in effect. A power of attorney can grant authority by citing the sections of the act that describe it, such as 62-8-204 for real property, and that "incorporates the entire section as if it were set out in full in the power of attorney."
Some powers need their own express grant. Under 62-8-201, an agent can create or change a trust, make a gift, create or change survivorship rights or beneficiary designations, or "access a safe deposit box or vault leased by the principal" only "if the power of attorney expressly grants the agent the authority." Unless the document says otherwise, only an agent who is your parent's ancestor, spouse or descendant can use those powers to benefit themselves.
When does it take effect, and when does it end?
It's "effective when executed" unless it says it starts at a future date or event (62-8-109(a)), subject to the recording rule after incapacity. If it starts on incapacity and no one is named to decide, a written determination by a physician or licensed psychologist, or in some cases an attorney, court or government official, triggers it.
Under 62-8-110, it ends when your parent dies or revokes it, when the document says it ends or its purpose is accomplished, or when the agent can no longer serve and no other agent is named. Divorce matters: under S.C. Code 62-2-507, a divorce or annulment revokes the nomination of a former spouse as "agent, attorney in fact or guardian," unless the document says otherwise. A decree of separate maintenance isn't a divorce for this purpose.
Court appointments matter too. Unless the document says otherwise, appointing a guardian or conservator ends the parts of the power of attorney that fall within the guardianship or conservatorship (62-8-108(b)).
What does the agent have to do?
Under 62-8-114, an agent who has accepted the role must act according to your parent's known reasonable expectations and in their best interest, in good faith, and only within the authority granted. Unless the document says otherwise, the agent must also act loyally, avoid conflicts of interest, act with care and diligence, and "keep a record of all receipts, disbursements, and transactions made on behalf of the principal."
If your parent, a guardian, a conservator or a protective government agency asks for those records, the agent has thirty days to comply or explain in writing why more time is needed. An agent is entitled to reasonable compensation unless the document says otherwise. Our guide to protecting a parent from scams covers the warning signs any agent should know.
Do banks have to accept a South Carolina power of attorney?
Yes, within set deadlines, unless one of the statute's listed exceptions applies. Under S.C. Code 62-8-120, a person asked to accept one must accept it, or request a certification, translation or opinion of counsel, "no later than seven business days after presentation of the power of attorney for acceptance." After receiving what they asked for, they must accept within five business days, and they "may not require an additional or different form of power of attorney."
South Carolina adds a drafting point. A person isn't required to accept a power of attorney that lacks this provision, or substantially this provision: "No person who may act in reliance upon the representation of my agent for the scope of authority granted to the agent shall incur any liability to me or to my estate as a result of permitting the agent to exercise this authority, nor is any person who deals with my agent responsible to determine or ensure the proper application of funds or property." A document without that clause gives a bank a lawful reason to say no (62-8-120(b)(7)).
Other listed reasons to refuse include a good-faith belief the power isn't valid and a report to the state about suspected abuse or exploitation. A wrongful refusal can bring a court order to accept it and liability for reasonable attorney's fees and costs. Other laws that apply to financial institutions control where they conflict with the act.
How do you get a power of attorney for an elderly parent in South Carolina?
Your parent makes it, signing before two witnesses and a notary while still able to, and the agent records it with the county before acting after incapacity. The steps, in order:
- Talk with your parent about who they'd want acting for them, and who should succeed them.
- Choose a document drafted for your parent's situation, including the reliance clause in 62-8-120(b)(7).
- Go through the powers with your parent, including any gifts, beneficiary changes or safe deposit box access that need an express grant.
- Your parent signs in front of two witnesses and acknowledges it before a notary.
- Record it with the county where your parent lives, so the agent can act if your parent later loses capacity.
- Give the agent a copy and keep the original somewhere safe.
Timing is the constraint: your parent has to be able to sign. If that moment has passed, the family may need a court process instead, described in conservatorship and guardianship. For help with the witness, notary and recording steps, see what an elder law attorney does.
How do you revoke a power of attorney in South Carolina?
Unless the document says otherwise, your parent signs a revocation with two witnesses and a notary, as for the original, and records it in the same county if the original was recorded. Section 62-8-110(g) says "a revocation of a power of attorney must be executed in accordance with Sections 62-8-105 and 62-8-106" and "if the power of attorney has been recorded, then the revocation also must be recorded in the same county as the recorded power of attorney."
People who act in good faith without actual knowledge of the revocation are protected, so sending it to the agent and every bank holding a copy matters. Signing a new power of attorney doesn't cancel an older one unless the new one says so.
How much does a power of attorney cost in South Carolina?
South Carolina caps the notary's fee at five dollars per signature for an acknowledgment; the other costs are the county's recording fee and any attorney's drafting fee. Under S.C. Code 26-1-100, the maximum is "for an acknowledgment, five dollars per signature," and an electronic notary may charge up to ten dollars per signature for an acknowledgment (26-2-70). The Secretary of State's notary manual adds that "notaries are not required to charge a fee for their notarial acts." A notary may also charge a travel fee agreed in advance.
Ask the county office that records deeds about its recording fee. South Carolina has no fill-in statutory form, so if an attorney drafts the document, ask about the fee before the work starts.
Frequently asked questions
Does a power of attorney need to be notarized in South Carolina?
Yes. Under S.C. Code 62-8-105, a South Carolina power of attorney must be "acknowledged or proved pursuant to Section 30-5-30," which means before a notary or other officer who can administer oaths. It also needs two witnesses, under the same rules as a will. A notarized and witnessed document is also what triggers the bank-acceptance deadlines.
Does a South Carolina power of attorney have to be recorded?
Only to be used after your parent's incapacity, but then it's required. Under 62-8-109(c), the agent can't act after incapacity until it's recorded like a deed in the county where your parent lives. It can be recorded at any time, including before incapacity, and a revocation of a recorded power must also be recorded there.
Where can I get a South Carolina power of attorney form?
Article 8 of the Probate Code doesn't include a fill-in statutory form, so the document is drafted for your parent. Whatever the source, it needs two witnesses and a notary, express grants for powers like gifts, and the reliance clause in 62-8-120(b)(7) if banks are to be held to the acceptance deadlines.
Can a South Carolina power of attorney make medical decisions?
South Carolina has a separate document for health care: the health care power of attorney under S.C. Code 62-5-500 to 62-5-518, which must be substantially in the statutory form and signed before two qualified witnesses. The financial agent must cooperate with the health care decision-maker. Our guide to South Carolina's health care power of attorney explains it.
What if my elderly parent can no longer sign?
Someone can sign your parent's name in their presence at their direction, but your parent still has to direct it. If your parent can no longer make that decision, a court guardianship or conservatorship may be the remaining route. A power of attorney can nominate a guardian or conservator for the court to consider.
Is a power of attorney from another state valid in South Carolina?
Yes, if it complied with the law that governs it when signed, or with the federal rules for a military power of attorney (S.C. Code 62-8-106(c)). But after your parent's incapacity, the agent still must record it in South Carolina before acting, under 62-8-109(d), in the county where your parent lives or owns property.
Getting started
A power of attorney is time-sensitive, because it needs your parent's signature while they can still give it, and in South Carolina it needs two witnesses, a notary and, before use after incapacity, a county recording. The plan this site builds asks four questions, including which state your parents live in, and puts the handful of steps that matter most for your family in order. It's free and takes about 90 seconds.
Related guides
Sources
- S.C. Code Title 62, Chapter 8, South Carolina Uniform Power of Attorney Act: execution (62-8-105), durability (62-8-104), validity and out-of-state powers (62-8-106), recording and effective date (62-8-109), termination and revocation (62-8-110), duties (62-8-114), acceptance (62-8-119, 62-8-120) and express grants (62-8-201); published by the South Carolina General Assembly.
- S.C. Code Title 62, Chapter 2: will execution and witnesses (62-2-502) and revocation by divorce (62-2-507).
- S.C. Code Title 30, Chapter 5: acknowledgment or proof before recording (30-5-30).
- S.C. Code Title 26, Chapter 1: notary rules and maximum fees (26-1-90, 26-1-100).
- S.C. Code Title 26, Chapter 2: maximum fees for electronic notaries (26-2-70).
- South Carolina Secretary of State, Notaries: notary information and the Notary Public Reference Manual.
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