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 Supp. 1978) (originally enacted as No. 393, 1978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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