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30 S. C. L. Rev. 511 (1979)
Estate Planning, Disability, and the Durable Power of Attorney

handle is hein.journals/sclr30 and id is 523 raw text is: ESTATE PLANNING, DISABILITY, AND THE DURABLE POWER OF ATTORNEY A. L. MOSES* ADELE J. POPE** Attorneys and their clients have paid scant attention to the possibility of the client incurring a serious mental or physical disability and to the problems a disability may create. The more foreseeable problems and concerns of disability are normally lim- ited to the physical and emotional impact, but disability may also result in the serious impairment of the client's ability to manage assets. The modern estate planner must consider and plan for this contingency if he is to ensure the proper manage- ment of the client and his assets. South Carolina has recently enacted a durable power of attorney statute' that can serve as a * Member of the South Carolina Bar, A.B., Wofford College, 1961; LL.B., University of South Carolina, 1964; LL.M., Georgetown University, 1967. ** Member of the South Carolina Bar. B.A., Mary Baldwin, 1965; M.A.T. University of Virginia, 1969; J.D., University of South Carolina, 1974. For their review, valuable suggestions, and encouragement, the authors express their gratitude and indebtedness to Edward S. Schlesinger, Esquire, New York City, New York, Professor William S. Huff, Denver, Colorado, Robert M. Earle, Esquire, Columbia, South Carolina, Clarke W. McCants, Jr., Esquire, Columbia, South Carolina, Senator Heyward E. McDonald, Columbia, South Carolina, Julian J. Nexsen, Esquire, Columbia, South Carolina, Ray M. Seigler, Esquire, Columbia, South Carolina, Albert C. Todd, III, Es- quire, Columbia, South Carolina, and Robert P. Wilkins, Esquire, Columbia, South Caro- lina. 1. S.C. CODE ANN. § 32-13-10 (Cum. Supp. 1978) (originally enacted as No. 393, 1978 S.C. Acts 1277). The text of the statute provides: Whenever a principal designates another his attorney-in-fact by a power of attorney in writing and the writing contains the words This power of attorney shall not be affected by physical disability or mental incompetence of the princi- pal which renders the principal incapable of managing his own estate showing the intent of the principal that the authority conferred shall be exercisable notwithstanding his physical disability or mental incompetence, the authority of the attorney-in-fact is exercisable by him as provided in the power on behalf of the principal notwithstanding later disability or mental incompetence of the principal. All acts done by the attorney-in-fact pursuant to the power during any period of disability or mental incompetence shall have the same effect and inure to the benefit of and bind the principal or his heirs, devisees, legatees and personal representative as if the principal were mentally competent and not disabled. The attorney-in-fact shall have a fiduciary relationship with the prin- cipal and shall be accountable and responsible as a fiduciary. The appointment' of a power of attorney under this act act shall not prevent a person or his representative from applying to the court and having a committee appointed after which the power of attorney shall become inoperative. A power of attorney executed under the provisions of this act shall be executed and attested with the same formality and with the same requirements as to witnesses as a will. In

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