Palmetto Probate Blog

If you are going to need help with your affairs and feel like a power of attorney is appropriate, it is best to sign one sooner rather than later. In order to have a valid power of attorney, the person signing it must have contractual capacity, that is, a person must be able to understand, at the time the contract is executed, the nature of the contract and its effect.

Many times I get calls from people worried about relatives who do not have their affairs in order. If the relative cannot understand what a power of attorney is (or can’t sign up for an insurance policy or buy a car), then it is probably too late to go in that direction. In that case, a guardianship or conservatorship (or both) may need to be established, which is usually more complicated than simply signing a power of attorney.

I will discuss guardianships and conservatorships, which are alternatives to powers of attorney, in a different post. However, don’t delay seeking out advice if you think you are going to need help with your affairs!

Important note: Nothing in this post is intended as legal advice, and I am not your attorney just because you are reading this. If you have any questions, contact a qualified attorney.

What is a durable power of attorney?

A power of attorney is a fundamental estate planning document. It allows you to authorize another person, called an attorney in fact, to act in your place. Usually a power of attorney has a long list of things that your attorney in fact can do for you. If it is durable, it means that it is effective even if your are disabled or incapacitated. In South Carolina, a power of attorney must contain special language in order to make it durable. Most forms used by attorneys that I know contain this language.

The power of attorney is possibly the most powerful document someone can sign. It can be drafted to allow someone to do everything you can do. It is important to go over the ramifications of this with your attorney. Before signing one, carefully consider the ramifications and any special circumstances you may have. Also, carefully consider who you are picking as your attorney in fact – it is critical to name someone you trust completely.

I will be writing more on this topic later.

One important reminder: this blog is for information only. It is not intended to be legal advice.

Some people have asked me “if you are in South Carolina, and you write a will in your own handwriting and sign it, without any witnesses, is it valid?”  These type of wills are known as holographic wills.  No, not this type of hologram http://www.billboard.com/articles/events/bbma-2014/6092040/michael-jackson-hologram-billboard-music-awards

 Or this

 http://starwarsquotes.tumblr.com/post/2998041185/help-me-obi-wan-kenobi-you-are-my-only-hope

 A holographic will is one that is completely written in the testator’s (the person writing the will) own handwriting and signed by the testator.  There are no witness or notary requirements.  In some states, holographic wills are valid.  Unfortunately (or fortunately, depending on your point of view) South Carolina does not provide for holographic wills.  Someone with a South Carolina will needs to have it executed in a certain way in order to ensure its validity.  Check with a qualified lawyer to make sure your will is done right or, if you have a holographic will from another state, have a lawyer check it out to make sure it is valid here.  

Although I am a lawyer, I am not your lawyer just because you are reading this blog.  I am doing this for general information, and you should not take it as legal advice.  Feel free to contact me if you have any questions or comments about this post and your situation.  

Sometimes Medicare patients are admitted in observation status instead of on an inpatient basis.  This can affect the amount of the patient’s bill.  It may not be clear how a patient has been admitted until they receive a bill.  If you are in that situation, there are some materials here that might be of use to you:  http://www.medicareadvocacy.org/self-help-packet-for-medicare-observation-status/.

Like all my posts, this is not legal advice, and I am not your attorney just because you are reading the blog.  If you have any questions, contact an attorney, stat!

I frequently get asked about the reading of a will after someone passes away.  What could be more dramatic?

Unfortunately, in South Carolina, there is no formal requirement for a reading of the will.  Usually, whoever is named as the personal representative knows where the will is and is responsible for bringing it to the probate court.  There it will be public record.   If you take something under a will, or would have inherited something if there was no will, you should receive notice that the estate has been opened.   Generally, you can then request notice of everything that is going on in the estate or go to the probate court and look at the file.

Like all my posts, this is not legal advice, and I am not your attorney just because you are reading the blog.  If you have any questions, contact an attorney, stat!

Check out this post from readwrite.  It gives you some of the issues surrounding what happens to social media accounts and data after someone passes away.

As of Friday, 12/13/2013, Court Administration was still working on the revised forms.  The Word versions of the forms need a lot of formatting work.  Before using a form for the first time you may want to check the S.C. Judicial website to make sure you have the correct version.

This is my new blog!  I am going to try to keep up with the changes to the probate code and issues that affect elders.  And whatever else strikes my fancy.