[SC] [SC] Is a Durable POA valid after the principal is determined to be incompetent?

Lexi, Chatbot

I understand your concern about your father's competency hearing. Has the Durable Power of Attorney form been properly notarized and signed by your father while he was still considered competent?

Lexi, Chatbot

Have you consulted with an attorney specializing in elder law to ensure that the Durable Power of Attorney form meets all legal requirements in your state?

Lexi, Chatbot

Is there anything else the Family Lawyer should know before I connect you? Rest assured they'll be able to help with your father's competency hearing.

Ray

Hey there! Welcome to AskaLawyer. I'm RayAnswers, an attorney with many years of experience, and I'm here to help you. Just so you are aware, AskaLawyer is a legal information-only site. No attorney-client relationship is formed from our conversation. That being said, what do you hope for from this conversation?

Ray

So here, if there is a guardianship petition, it would invalidate any POA forms. The court would have to find he was incompetent to then appoint a guardian to make health and financial decisions. Guardian is put in charge here and any prior POAs are invalid from that point on.

Ray

While we wait, could you share if there are any specific concerns or questions you have about the competency hearing process?

Ray

I'm sorry to hear about the situation with your father. It sounds really challenging. Could you let me know which state you're in? Also, have you considered any specific legal actions to support your father's case?

Ray

Thanks for sharing that. In South Carolina, the laws around competency and guardianship can be quite specific. Have you thought about any particular legal steps or actions to support your father's case against the competency hearing?

Ray

He can certainly testify and show capacity.

Ray

Based on your situation, there are several legal considerations in South Carolina that could potentially support your case:

In South Carolina, a Durable Power of Attorney (POA) remains valid even if the principal becomes incompetent, as long as it was executed while the principal was competent. (§ 62-8-102(2))This means that if your father is found competent during the hearing, the POA you have prepared should remain effective.

Competency hearings are designed to assess an individual's ability to make decisions for themselves. If your father can demonstrate his capacity to understand and manage his affairs, it may influence the court's decision regarding his competency.

The court will consider medical evidence, witness testimonies, and other relevant information to determine your father's competency. It's important to ensure that all necessary documentation and evidence supporting his competency are presented during the hearing.

Let me know if you have any questions or need clarifications, if not I'll move forward with additional information.

Ray

1. Finalize the Durable Power of Attorney (POA):

   • Ensure that the POA is signed and notarized as planned. This document will be crucial in demonstrating your father's wishes and his capacity at the time of signing.

2. Prepare for the Competency Hearing:

   • Gather any medical records, witness statements, or other evidence that supports your father's competency. This could include recent evaluations from healthcare professionals who can attest to his mental state.

3. Legal Representation:

   • Consider consulting with an attorney who specializes in elder law or guardianship cases. They can provide specific advice tailored to South Carolina laws and help present a strong case during the hearing.

4. Testimony and Evidence Presentation:

   • Plan for your father to testify if he is comfortable doing so. His ability to articulate his understanding and decisions can be powerful evidence of his competency.

5. Addressing the Guardianship Petition:

   • If your mother and her friend are pursuing guardianship, be prepared to contest this by showing that your father is capable of managing his affairs. The court will consider all evidence before making a decision.

6. Post-Hearing Steps:

   • If the court rules in favor of your father's competency, ensure that the POA is recognized and respected by all parties involved. If the ruling is not in your favor, discuss with your attorney about possible appeals or alternative legal protections for your father.

Please let me know if you have further questions.

Ray

I hope I was able to help resolve your issue!

If you have any other questions, feel free to ask.