Common Questions About South Carolina Estate Planning
Our Lexington estate planning team is always available to answer questions and provide information. Often, our clients have the same questions when beginning to plan for the future, so we’ve compiled answers to some of the most common questions here.
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What is a Healthcare Power of Attorney?
A Healthcare Power of Attorney is a document in which you name someone else to make healthcare decisions for you if you are unable to make them for yourself. In South Carolina, we have a statutory form created by our legislature, and every healthcare power of attorney done in this state since January 1, 2007 should be very similar to that document. If your healthcare power of attorney was done before 2007, you should really consider getting it updated.
This document includes the power to make any medical decisions that may be needed, and also lets you make three very important end-of-life decisions. These include whether you want to be an organ donor, whether you want to be kept alive through means such as ventilators and other machines if you have an incurable or irreversible condition or are in a state of permanent unconsciousness, and whether you would want your life prolonged by tube feeding if it you are in that same condition.
While these are decisions a lot of people do not want to face, making them ahead of time can be a great blessing to your family, and will ensure you have named someone to make these decisions so family members don’t have to argue over who gets to make the decision later.
If you do not have a healthcare power of attorney or think you may need to update your document, give us a call or fill out the form to the right so we can set a time to get started.
Why do I need a Power of Attorney?
A Financial Power of Attorney names a trusted individual to make financial decisions for you if you are no longer able to make those decisions for yourself. This document is needed because, without one, someone will have to be appointed by the Probate Court to make decisions for you if you become incapacitated. A Guardianship allows the Court to appoint someone to make health care and placement decisions for you. A Conservatorship is for managing your assets. A Guardianship is different from a Conservatorship, although they can be filed jointly. Both of these require an action to be filed, and can easily cost thousands of dollars to have put in place. Even spouse would have to go through this legal process if you were to become incapacitated and did not have a Power of Attorney.
We have had to handle Guardianships and Conservatorships several times for spouses of incapacitated people. They are almost always shocked they have to go through this process, and are surprised by how expensive it is. Unfortunately, the law requires that a Guardian ad Litem, who is another attorney, and a Visitor, who must be a registered nurse, social worker or attorney, be appointed as part of the action. The filing fees alone for these actions are several hundred dollars. There are also annual reporting requirements, Court fees, and ongoing Court supervision for as long as the disability lasts. All of this, however, can be completely avoided with a Financial Power of Attorney.
If you really care about your loved ones, take care of this ahead of time. Go see a local attorney and have them draft a good, valid power of attorney so that if something happens, you will know that you (and your family) are taken care of. This costs very little to set up, and will spare your loved ones from a lot of stress and paperwork in Court later.
If you are interested in having a power of attorney set up, give us a call or fill out the easy contact form on the right. Also be sure to request a copy of our new book, Five Reasons a Simple Will Might Not Be Enough, which not only covers the basics of estate planning in South Carolina, but also includes information on Financial and Health Care Powers of Attorney.
What Happens If You Don’t Have a Will?
If you die without a Will, there are some serious implications, but the most important one is that state law determines how property is distributed. If you have a Will, you can leave your property to any one you choose – your spouse, your children, your church, a charity, etc. If you do not have a Will, South Carolina law determines who will receive your property. This law is known as the “Intestacy Statute.” Most of our clients believe that even without a Will, their assets will simply go to their spouse. That is not true in South Carolina. The Intestacy Statute says that if you die without a Will and are married with children, your assets are divided so that 50% goes to your spouse and 50% to your children. This can cause quite a mess, especially if you have a spouse and children who may not get along. Imagine owning your home with your children or stepchildren. Who is responsible for paying the mortgage? Who pays the taxes? Often, this can lead to costly litigation.
A real example of this issue happened to one of our clients. Mr. and Mrs. Smith got married. They were both in their late 40’s, and they both had children from previous relationships. Mrs. Smith sold her home and moved in with Mr. Smith. About two years after their marriage, Mr. Smith died suddenly from a heart attack. He did not have a Will. The South Carolina Intestacy Statute said that Mrs. Smith received 50% of Mr. Smith’s assets and his children received the other 50%. Mr. Smith only had one child; he had a son who was a criminal and had never worked an honest day in his life. Mr. Smith was estranged from his son and had not spoken to him in years. Mr. Smith’s son was in jail at the time of Mr. Smith’s death, but he still inherited half of his father’s estate, including a half interest in Mr. Smith’s house. When the son was released from jail, he decided to move in to the house that he now partly owned. Mrs. Smith could not tolerate living with the son. She basically gave up her half of the house and moved away. Would Mr. Smith have wanted his son to receive half of his house? Probably not, but Mr. Smith did not plan appropriately. Do not let this happen to your family. A Will is a fairly inexpensive document that can save your family a lot of stress and money after your death.