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RobertJDFL
RobertJDFL, Attorney
Category: Estate Law
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What does S C law say is the determination of incompetance?

Customer Question

what does S C law say is the determination of incompetance ? Can a person who suffers from dementia be declared incompetent at all times ?
Assistant: Thanks. Can you give me any more details about your issue?
Customer: My wife was placed in assisted living by her daughters because they have a medical power of attorney and a durable poower of attorney, and although she has dementia I do not think she is incapicitated or incompetant. Both documents wer signed over three years ago and she was already showing signs of dementia
Submitted: 4 months ago.
Category: Estate Law
Expert:  RobertJDFL replied 4 months ago.

Thank you for using Just Answer. I am a licensed attorney and look forward to helping you. I am reviewing your question and will reply back shortly.

Expert:  RobertJDFL replied 4 months ago.

Good afternoon,

The closest definition under South Carolina law comes from Title 62 of the South Carolina Code. It states in part:

Unless otherwise apparent from the context, in this Code:

"(1) "Incapacitated person" means any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, or other cause (except minority) to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person or property."

A Durable Power of Attorney is valid upon signing by the principal and survives incapacity, but is subject to revocation by a principal at any time through the execution of a new Power of Attorney (which would revoke any prior existing POA) or notification to their agent(s) that they are revoking the POA, so long as they are able to contract to do so (to put it another way, they have to be competent enough to do so).

With a durable power of attorney, a principal creates an agency in another that continues despite the principal's later physical disability or mental incompetency. See § 62-5-501; see also 3 Am.Jur.2d Agency § 28 ("The only requirement is that an instrument creating a durable power contain language showing that the principal intends the agency to remain effective in spite of his later incompetency."). Moreover, in order for the principal to create the agency relationship in the first instance, the principal must have the mental capacity to contract. 3 Am.Jur.2d Agency § 12 ("A person who is not in a mental condition to contract and conduct his business is not in a condition to appoint an agent for that purpose."). Therefore, in order to execute or revoke a valid power of attorney, the principal must possess contractual capacity. See

In re Thames, 544 S.E.2d 854, 344 S.C. 564 (S.C.App. 2001 ; Timmons v. Starkey, 671 S.E.2d 101, 380 S.C. 590 (S.C.App. 2008).

Expert:  RobertJDFL replied 4 months ago.

I couldn't find anything specifically that says incapacity is considered permanent, and that is because it doesn't have to necessarily be permanent. A person could develop an illness or injury that results in temporary incapacity and then regain competency. Or --and having gone through this with my father who had dementia - a person can have periods (hours/days) of lucidity where they are able to make decisions.

Chances are, your daughters will challenge any attempt by your wife to revoke the POA if she is still competent due to her dementia diagnosis. Therefore, you'll want a letter or documentation from her physician supporting that she does still have some degree of mental capacity and understanding.

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