Medical power of attorney in South Carolina: how to sign one
The short answer
South Carolina's health care power of attorney names someone to make medical decisions when you can't. It must follow the state's form and be signed before two witnesses; a notary is optional. Relatives and heirs can't witness. If you name nobody, the law turns to a spouse, children, parents, siblings and other relatives, with a close friend last.
The question under every medical power of attorney is simple. If you can't speak for yourself, who talks to the doctor?
South Carolina calls the document a "health care power of attorney." This page covers how to sign one, who can't be your witness, how the living will differs, and what happens if you name nobody. It is part of our state-by-state estate planning guides. For the basics of the role, see what a medical power of attorney is.
How do I sign a health care power of attorney in South Carolina?
South Carolina has a statutory form, and documents signed since January 1, 2007 must be substantially in that form (S.C. Code 62-5-504). It is not a blank page you write from scratch.
The signing rules (S.C. Code 62-5-503):
- The document is dated.
- You sign it, or someone signs for you in your presence and at your direction.
- At least two witnesses sign. Each one saw you sign or heard you acknowledge your signature.
A notary is not required. The statutory form has a notary block, but it is labeled optional and not needed for a valid document.
The health care power of attorney is durable by statute. It works during any time you are mentally incompetent, as a physician certifies under the law. That is different from South Carolina's financial power of attorney, which has its own signing and recording rules. Our South Carolina power of attorney guide covers that one.
Who can't be my witness?
This is where South Carolina is strict. Each witness signs a statement that they are none of the following (S.C. Code 62-5-504):
- Related to you by blood, marriage or adoption, or married to someone who is.
- Directly responsible for paying for your medical care.
- Someone who would inherit from you under your will or by law.
- The beneficiary of life insurance on your life.
- The person you name as your health care agent, or your backup agent.
- Your attending physician or someone who works for that physician.
- Someone you owe money to.
Only one of the two witnesses may work for a health facility where you are a patient. In practice, most people ask two friends or neighbors who aren't in their will, or staff at a lawyer's office.
Who can I name as my agent?
Your agent must be at least 18 and of sound mind. Your agent can't be your current treating provider, an employee of that provider, an employee of a nursing facility where you live, or the spouse of any of them, unless they are a relative (S.C. Code 62-5-503).
Your agent is a fiduciary: legally required to act in your interest and follow what you wrote. In daily terms, that means talking with your doctors, reading your chart, and saying yes or no to a test or a new medicine the way you would.
Do I need a living will too?
Many people sign both. A health care power of attorney names a person. A living will writes down your wishes about life-sustaining treatment, so that person isn't guessing.
South Carolina's living will is called a "Declaration of a Desire for a Natural Death." Its signing rules are stricter than the health care power of attorney's (S.C. Code 44-77-40):
| Item | Health care power of attorney | Living will (Declaration of a Desire for a Natural Death) |
|---|---|---|
| Witnesses | Two | Two (one may be the notary) |
| Notary | Optional | Required |
| Witness affidavit | Not required | Required, sworn before the notary |
| Signing in a hospital or nursing home | Only one witness may be facility staff | One witness must be an ombudsman designated by the State Ombudsman |
| Statutory form | Substantially in the form in 62-5-504 | Substantially in the form in 44-77-50 |
The witness exclusions are essentially the same for both. If you have both documents, the living will controls in the situations it covers, and your health care agent decides the rest (S.C. Code 62-5-504).
Our post on health care power of attorney vs living will explains how the two fit together, and treatment preferences helps you think through what to write.
Who decides if I haven't named anyone?
South Carolina's Adult Health Care Consent Act picks for you (S.C. Code 44-66-30). The list is long, and a close friend comes last.
| Order | Who decides | Notes |
|---|---|---|
| 1 | A court-appointed guardian | If the decision is within the guardianship |
| 2 | Your health care agent | If within the agent's authority |
| 3 | Your spouse | Unless separated by certain court orders or a signed separation agreement |
| 4 | An adult child | A majority of those reasonably available, if several |
| 5 | A parent | |
| 6 | An adult brother or sister | Majority if several |
| 7 | A grandparent | Majority if several |
| 8 | Another adult relative by blood or marriage | Only one the provider believes has a close personal relationship with you |
| 9 | A person given authority by another law | |
| 10 | A close friend | Only after the facility finds everyone above unavailable |
The close friend's place was added in 2019. To serve, a friend must be an adult who has shown special care and concern for you and knows your health care views. They must be willing to act in good faith in your best interest, and they can't be a paid caregiver or health care provider to you. They also sign a notarized form from the facility describing your relationship.
There is one protection worth knowing. A provider may not give priority from the parent level down to someone you said, before losing capacity, you didn't want involved. Whoever decides must follow your wishes if known, and otherwise your best interest.
Notice how far down a friend sits: below grandparents and other relatives. If the person who really knows your wishes is a friend or neighbor, naming them in a health care power of attorney moves them to the front. Our who decides for me tool walks through your own situation, and the 50-state guide to default decision-makers compares other states.
Here is a typical case, a composite. Dorothy is 74, widowed, and lives in Charleston. Her only brother lives in Arizona. Her neighbor Pat drives her to appointments and knows what she wants. Without a document, Pat would come tenth. Dorothy names Pat as her health care agent and her brother as backup.
How do I choose my agent?
A short checklist:
- They know what you want, because you've told them.
- They can stay calm in a hospital hallway and ask good questions.
- They live close enough, or can travel when needed.
- You've named a backup in case they can't.
Our post on how to choose a medical power of attorney has more questions to ask.
Some people would like a professional standing by, first or behind a friend. A Kinly membership includes a medical power of attorney written for your state, and Trella Trust Company can be named in the role, first or as the backup to someone you choose.
Once your health papers are done, our South Carolina probate guide covers what happens to your home and savings later.
Common questions
Does a medical power of attorney need to be notarized in South Carolina?
No. A health care power of attorney needs two qualified witnesses, and the notary block on the state form is optional. The living will is different: it does need a notary.
Can a family member witness my South Carolina health care power of attorney?
No. A relative by blood, marriage or adoption can't be a witness. Neither can anyone who would inherit from you or who receives life insurance on your life.
Who makes medical decisions in South Carolina if there's no power of attorney?
A guardian or named agent comes first. After that, the order is your spouse, adult children, parents, siblings, grandparents, other close relatives, and a person authorized by another law. A close friend comes last and must sign a notarized form.
Is there an official South Carolina form?
Yes. A health care power of attorney signed since 2007 must be substantially in the statutory form. The living will must be substantially in its own statutory form too.
What if I sign my living will in a nursing home?
One of your two witnesses must be an ombudsman designated by the State Ombudsman. The same rule applies if you are a hospital patient when you sign.
Sources
- S.C. Code Title 62, Chapter 5: sections 62-5-503 and 62-5-504, health care power of attorney (South Carolina Legislature)
- S.C. Code Title 44, Chapter 77: Death With Dignity Act, sections 44-77-40 and 44-77-50 (South Carolina Legislature)
- S.C. Code Title 44, Chapter 66: Adult Health Care Consent Act, section 44-66-30 (South Carolina Legislature)
This page is general information, not legal or financial advice. Laws vary by state.