HEALTH CARE POWER OF ATTORNEY

(SOUTH CAROLINA)

[// GUIDANCE: This template is drafted for use in the State of South Carolina and is intended to satisfy the requirements of S.C. Code Ann. § 62-5-501 et seq. (2023). Customize bracketed fields, remove inapplicable options, and review all provisions for client-specific suitability before execution.]

TABLE OF CONTENTS

1. Document Header
2. Definitions
3. Operative Provisions
   3.1 Appointment of Health Care Agent
   3.2 Appointment of Successor Agent(s)
   3.3 Scope of Authority
   3.4 End-of-Life Decisions
   3.5 HIPAA Authorization
   3.6 Nomination of Guardian / Conservator (Optional)
4. Representations & Warranties
5. Covenants & Restrictions
6. Default & Remedies
7. Risk Allocation
8. Dispute Resolution
9. General Provisions
10. Execution Block

1. DOCUMENT HEADER

This Health Care Power of Attorney (“Agreement”) is made effective as of [EFFECTIVE DATE] (the “Effective Date”) by and between:

• [PRINCIPAL FULL LEGAL NAME], residing at [ADDRESS] (the “Principal”); and
• [AGENT FULL LEGAL NAME], residing at [ADDRESS] (the “Health Care Agent” or “Agent”).

Recitals
A. Principal desires to ensure that health care decisions will be made according to Principal’s wishes in the event Principal is unable, in the attending physician’s judgment, to make or communicate informed health care decisions.
B. South Carolina’s Health Care Power of Attorney Act, S.C. Code Ann. § 62-5-501 et seq., authorizes the execution of a durable health care power of attorney.
C. Principal executes this Agreement to appoint a trusted individual to act as Health Care Agent with full authority as set forth herein.

2. DEFINITIONS

For purposes of this Agreement, the following capitalized terms have the meanings set forth below:

“Advance Directive” means any written instruction recognized under South Carolina law that relates to the provision of health care when the Principal is incapacitated.

“End-of-Life Decision” means a decision to withhold, withdraw, or continue life-sustaining treatment, nutrition, hydration, or other medical intervention when the Principal is terminally ill or permanently unconscious.

“Good Faith” means an honest belief, absence of malice, and the observance of reasonable standards of fair dealing.

“Health Care Agent” or “Agent” means the individual appointed in Section 3.1 to make Health Care Decisions on the Principal’s behalf.

“Health Care Decision” means any decision regarding the Principal’s physical or mental health, medical treatment, surgical procedure, medication, admission to or discharge from a health-care facility, or any other matter authorized by this Agreement and applicable law.

“HIPAA” means the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, and the regulations promulgated thereunder.

“PHI” means “protected health information” as defined in 45 C.F.R. § 160.103.

3. OPERATIVE PROVISIONS

3.1 Appointment of Health Care Agent

The Principal hereby appoints [AGENT FULL LEGAL NAME] as Health Care Agent to make any and all Health Care Decisions for the Principal that the Principal could make if competent, subject to the limitations set forth herein.

3.2 Appointment of Successor Agent(s)

If the Agent is unable or unwilling to serve, the Principal appoints the following in the order listed:
1. [SUCCESSOR AGENT #1], residing at [ADDRESS];
2. [SUCCESSOR AGENT #2], residing at [ADDRESS].

3.3 Scope of Authority

Subject to Section 3.4 and Section 3.5, the Agent is authorized to:
a. Consent to, refuse, or withdraw medical or surgical procedures, tests, medications, and treatments;
b. Admit or discharge the Principal from hospitals, nursing homes, hospice facilities, or other health-care settings;
c. Contract for health-care services and facilities (financial liability remains the Principal’s, not the Agent’s, unless the Agent otherwise agrees);
d. Access, review, and disclose medical, psychiatric, or other health records, including PHI, and to execute any documents required for such disclosure;
e. Make anatomical gifts, authorize autopsies, and arrange for disposition of remains; and
f. Take any other action reasonably necessary to carry out the intent of this Agreement.

3.4 End-of-Life Decisions

1. Statement of Intent. It is the Principal’s desire that End-of-Life Decisions be guided by the following preference (check one):
   ☐ Sustain my life by any and all available medical means, regardless of prognosis.
   ☐ Sustain my life unless I am (i) terminally ill with no reasonable expectation of recovery or (ii) permanently unconscious, in which case I prefer comfort-focused care only.
   ☐ [OTHER SPECIFIC INSTRUCTIONS].
2. Agent’s Authority. The Agent is authorized to implement the above preferences and, if specific instructions are lacking, to decide based on the Agent’s assessment of the Principal’s best interests and values.
3. Do-Not-Resuscitate (DNR) Orders. The Agent may execute or revoke a DNR order consistent with the foregoing.

3.5 HIPAA Authorization

a. Authorization. The Principal expressly authorizes any Covered Entity to disclose to the Agent and any Successor Agent any and all PHI relating to the Principal.
b. Duration. This authorization is effective immediately and shall remain in effect until revoked in writing or automatically upon termination of this Agreement.
c. Redisclosure. The Agent may redisclose PHI solely for purposes of carrying out duties under this Agreement.

3.6 Nomination of Guardian / Conservator (Optional)

If a court deems a guardian or conservator necessary, the Principal nominates the Agent (or Successor Agent, in order listed) to serve in such capacity.

4. REPRESENTATIONS & WARRANTIES

4.1 Principal’s Capacity. The Principal represents that the Principal is of sound mind and is executing this Agreement voluntarily.

4.2 Agent’s Eligibility. The Agent represents that the Agent (i) is not the Principal’s attending health-care provider or employee thereof, (ii) is at least eighteen (18) years of age, and (iii) accepts the fiduciary obligations arising hereunder.

4.3 Survival. The representations and warranties in this Section survive the execution and any revocation of this Agreement to the extent necessary to enforce the parties’ respective obligations.

5. COVENANTS & RESTRICTIONS

5.1 Agent’s Duties. The Agent shall:
a. Act in Good Faith and in accordance with the Principal’s known wishes;
b. Consult with health-care professionals as needed; and
c. Keep reasonably detailed records of significant Health Care Decisions.

5.2 Prohibited Actions. The Agent shall not:
a. Authorize voluntary admission to a mental health facility for non-therapeutic reasons;
b. Consent to experimental treatments absent express Principal authorization; or
c. Engage in any act that would constitute assisted suicide or euthanasia under South Carolina law.

6. DEFAULT & REMEDIES

6.1 Revocation by Principal. The Principal may revoke this Agreement in whole or in part at any time by (i) executing a written revocation, (ii) physically destroying this document, or (iii) orally expressing the intent to revoke in the presence of a witness who memorializes the revocation in writing.

6.2 Resignation of Agent. The Agent may resign by providing written notice to the Principal, any Successor Agent, and the attending physician.

6.3 Judicial Relief. Any interested person may petition the South Carolina Probate Court for (i) removal of the Agent for cause, (ii) interpretation or enforcement of this Agreement, or (iii) appointment of a guardian or conservator.

7. RISK ALLOCATION

7.1 Indemnification. The Principal shall indemnify and hold the Agent harmless from any liability, loss, or expense incurred as a consequence of any act or omission performed in Good Faith under this Agreement, except for willful misconduct or gross negligence.

7.2 Limitation of Liability. The Agent shall not be liable for actions taken in Good Faith reliance on health-care provider representations or the validity of this Agreement.

7.3 Reliance by Third Parties. Any third party may rely conclusively on the validity of this Agreement and the authority of the Agent, absent actual knowledge of revocation or termination.

8. DISPUTE RESOLUTION

8.1 Governing Law. This Agreement and any dispute arising hereunder shall be governed by and construed in accordance with the laws of the State of South Carolina, without regard to conflict-of-laws principles.

8.2 Forum Selection. The parties consent to the exclusive jurisdiction of the Probate Court of the county in which the Principal resides at the time proceedings are commenced.

8.3 Arbitration & Jury Waiver. Arbitration is not available, and no party waives the right to a jury trial except as may be provided by applicable law with respect to probate proceedings.

8.4 Injunctive Relief. Nothing herein limits the right of any party to seek injunctive or declaratory relief to enforce Health Care Decisions.

9. GENERAL PROVISIONS

9.1 Durability. This Agreement is intended to be durable and shall not be affected by the Principal’s subsequent incapacity, except as expressly provided herein or by law.

9.2 Amendment & Waiver. This Agreement may be amended only by a writing executed with the same formalities as this Agreement. No waiver shall be effective unless in writing.

9.3 Copies. A photocopy or electronic copy of this Agreement has the same force and effect as an original.

9.4 Severability. If any provision is held invalid or unenforceable, the remaining provisions shall remain in full force and effect.

9.5 Entire Agreement. This Agreement constitutes the entire understanding between the parties with respect to the subject matter and supersedes all prior directives or powers of attorney for health care executed by the Principal.

9.6 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, and all of which together constitute one instrument.

9.7 Electronic Signatures. Electronic signatures are deemed original signatures for purposes of validity and enforceability to the fullest extent permitted by S.C. Code Ann. § 26-6-10 et seq. (South Carolina Uniform Electronic Transactions Act).

10. EXECUTION BLOCK

10.1 Signature of Principal

[PRINCIPAL NAME], Principal

Date: _____

10.2 Acceptance by Health Care Agent

I, [AGENT NAME], accept the appointment as Health Care Agent and agree to act in accordance with the foregoing Agreement.

[AGENT NAME], Agent

Date: _____

10.3 Acceptance by Successor Agent(s) (Optional)

1. _____ Date: ____
   [SUCCESSOR AGENT #1]

2. _____ Date: ____
   [SUCCESSOR AGENT #2]

10.4 Witness Attestation

We declare that the Principal is personally known to us, appeared to be of sound mind, and signed or acknowledged the Principal’s signature on this Agreement in our presence.

Witness #1

[PRINT NAME & ADDRESS]
Date: _____

Witness #2

[PRINT NAME & ADDRESS]
Date: _____

[// GUIDANCE: Under S.C. Code Ann. § 62-5-501, witnesses must not be related by blood, marriage, or adoption to the Principal, must not be entitled to any portion of the Principal’s estate, and must not be the Principal’s health-care provider or employee thereof.]

10.5 Notary Acknowledgment

State of South Carolina
County of ______

Subscribed, sworn to, and acknowledged before me by [PRINCIPAL NAME] on this _ day of _, 20____.

Notary Public for South Carolina
My Commission Expires: ____

[// GUIDANCE: File the fully executed original with the Principal’s primary care provider and keep copies with the Agent and Successor Agent(s). Consider registering the document with the South Carolina Advance Health Care Directive Registry, if available.]