Understanding the difference in a general power of attorney vs durable power of attorney is a key part of protecting your future. A power of attorney (POA) is a legal document that lets you appoint a person to make decisions on your behalf. However, the amount of authority a power of attorney grants is dependent on the type of power of attorney, which should align with your unique circumstances. In this blog, we’ll explore the differences between general vs durable POAs and how you can make sure your power of attorney reflects your needs and wishes.
What is a General Power of Attorney?
A general power of attorney is a legal document that grants a person, also known as an agent, the ability to make financial decisions for another person, also known as the principal. A general power of attorney can be temporary or long term, but both become invalid if the principal becomes incapacitated.
A South Carolina general power of attorney is often used to handle the principal’s financials:
- While they are traveling (e.g., on deployment, out of the state or country)
- On a regular basis
- In a business context, such as allowing the agent to sign contracts, sell property, etc.
- While the principal is dealing with a temporary health condition
A general power of attorney does have limitations, including becoming void if the principal becomes incapacitated and not allowing the agent to make all decisions for the principal. Additional documents can be paired with the general power of attorney to ensure continuity of care and assets for the principal.
What is a Durable Power of Attorney?
A durable power of attorney is a legal document that allows an agent to manage the principal’s finances and financial decisions, even if they become incapacitated. The main difference between a general vs durable POA is that a durable power of attorney is still valid if the principal becomes incapacitated for any reason.
A general power of attorney is often used to ensure an agent’s ability to:
- Handle the principal’s finances during incapacity
- Manage the principal’s real estate
- Access the principal’s retirement funds
- File the principal’s taxes
- Make medical decisions for the principal
A durable power of attorney is an important aspect of long-term estate planning, both for the natural aging process and in the event of life-threatening illness. With a durable power of attorney, you can avoid the need for a court-appointed conservator over your assets and your loved ones can more easily navigate an often emotionally distressing time while ensuring that your wishes are being followed.
Key Differences Between General and Durable Powers of Attorney
Validity During Incapacity
- General POA: No longer valid if the principal becomes incapacitated
- Durable POA: Remains valid, even if the principal becomes incapacitated
Purpose
- General POA: Most often used for short-term or routine financial management
- Durable POA: A part of long-term estate planning, especially in the event the principal becomes incapacitated
Scope of Use
- General POA: Gives the agent the ability to make financial decisions, though often with limited scope and duration
- Durable POA: Allows the agent to handle a broader range of responsibilities, especially when paired with other estate planning documents
Protection Against Court Intervention
- General POA: The court may need to assign a conservator to handle the principal’s financials and assets if they become incapacitated
- Durable POA: Helps avoid a court-appointed conservator as the agent can continue to act on the principal’s wishes, even if they become incapacitated
Common Uses
- General POA: Business transactions, travel-related financial management, temporary health conditions
- Durable POA: Long-term estate planning, management of finances and property, medical and healthcare decisions
An experienced estate planning and probate attorney can help you identify if a general vs durable POA is more appropriate for your situation. Together, you can review your needs and discuss the complexities of a South Carolina power of attorney. Your attorney will also ensure your power of attorney is appropriately filed with the state to ensure its validity in the eyes of the court.
Why the Difference Between General and Durable POA Matters in South Carolina
Understanding the difference between a general vs durable POA is an important part of estate planning in South Carolina as this legal document affects medical, financial, and end-of-life planning. These legal documents not only determine who can act on your behalf, but also when and how that authority applies. A power of attorney plays a crucial role in safeguarding your wishes and assets.
It’s important to note that in South Carolina, a power of attorney is considered durable by default. This means that the document must explicitly state if it is a general power of attorney vs durable power of attorney. Additionally, a South Carolina power of attorney must be in writing, signed by the principal, witnessed by two individuals, and notarized for it to be official. Not adhering to these requirements can result in the power of attorney being challenged or invalidated during a crucial time.
How to Choose the Right Power of Attorney for Your Needs
Choosing between a general power of attorney vs durable power of attorney can seem complicated. A few things to consider when determining which power of attorney is appropriate for your needs:
- Take into account your personal and financial situation.
- How much authority do you wish to grant your agent? And, is the POA for a short trip or part of a long-term health plan?
- What are your medical and financial wishes in the event you become incapacitated?
While a durable power of attorney is an important document, it does not address every aspect of your personal and medical care or your asset distribution. For a full estate plan, combining a durable power of attorney with other estate planning documents, like a living will or trust, is often the most comprehensive approach. Having these documents to use in combination with a durable power of attorney ensures your wishes are clearly documented and legally protected.
Seeking out professional durable powers of attorney services ensures you choose the power of attorney most appropriate for your unique situation and that it is considered valid by the state of South Carolina.
Contact Our Estate Planning Lawyers to Create Your South Carolina Power of Attorney
Choosing between a general power of attorney vs durable power of attorney is not just a legal decision. It’s a personal decision that can impact your finances, health care, and peace of mind. With the right guidance, you can make sure your documents reflect your goals and protect your interests in both the short and long term. Working with an experienced South Carolina estate planning lawyer can give you the confidence that your power of attorney is drafted, executed, and filed properly to hold up when it matters most.
Harvey & Battey’s estate planning and probate team has a wealth of knowledge and experience with powers of attorney. Attorney Eugene Parrs has more than 45 years of experience working with clients to create powers of attorney, and Attorney Ashley Amundson has years of experience in not only creating powers of attorney, but also ensuring they are upheld through her experience as a probate judge. Schedule a consultation with either of our expert estate planning and probate attorneys to discuss your general or durable POA needs.
Harvey and Battey is your full service law firm in Beaufort, SC with over 100 years of experience and a strong reputation. With Harvey and Battey, you get the personalized attention of a small firm combined with the knowledge and resources of a large firm.