If I Have a Will, Do I Still Need a Power of Attorney?

Starting your estate planning journey? One of the most common questions people have at the beginning of this process involves needing a power of attorney. What is it? What do they do? If I already have a will, do I really need a power of attorney?

The short answer is that a will and a power of attorney serve two very different purposes. While a last will and testament generally addresses what happens to your property after you die, a power of attorney can allow someone you trust to make financial, legal, or health care decisions on your behalf while you are still living. For South Carolina residents, understanding the difference between these documents is an important part of starting the foundation of your estate plan.

What Does a Will Do?

A will is a legal document that communicates your wishes regarding your property after death. It can identify the people or organizations you want to inherit your assets and can name a personal representative to your estate.

When someone with a will dies, the estate generally goes through the South Carolina probate process. The personal representative named in the will is responsible for identifying and gathering the deceased person’s assets, addressing debts and expenses, and distributing the remaining assets according to the will and applicable South Carolina law.

However, a will does not control what happens to you while you are alive. If you become seriously ill, injured, or otherwise unable to manage your own financial affairs, your will does not give another person the authority to step in and act for you. There are ways to incorporate that, though, such as naming a durable power of attorney.

What Is a Durable Power of Attorney?

A durable power of attorney (POA) is a legal document that allows you to appoint another person, known as your agent, to act on your behalf in financial and legal matters. This becomes relevant when you are medically impaired or incapable of making decisions for yourself. Depending on the authority granted in the document, your agent may be able to handle matters such as banking, financial transactions, real estate, property, and other personal or business affairs.

The word “durable” is especially important. Under the South Carolina Uniform Power of Attorney Act, a power of attorney can remain effective even if the person who created it later becomes incapacitated. (X)

In simple terms, think of a durable power of attorney as a way to address your affairs during your lifetime if you become unable to manage them yourself, rather than waiting until death to get things in order.

What Is a Health Care Power of Attorney?

A health care power of attorney serves a different purpose from a durable power of attorney. In South Carolina, a health care power of attorney allows you to designate someone you trust to make health care decisions for you if you become unable to make or communicate those decisions yourself. This person is commonly referred to as your health care agent.

Your health care agent may be called upon to communicate with doctors, review medical information, and make health care decisions within the authority provided by your document. However, a health care POA does not have the authority to handle your assets, finances, or monetary decisions, and are simply responsible for your medical treatment.

What Is a Living Will?

A living will is another important component of estate planning. While a health care power of attorney allows you to designate another person to make health care decisions on your behalf, a living will allows you to communicate your own wishes concerning certain end-of-life medical treatment.

This type of document also changes to roll of a health care power of attorney. Instead of allowing them to make decisions on your behalf, it is their responsibility to ensure that the medical professionals and those around you follow your wishes stated in your living will.

A living will, unlike a regular will, can go into effect before death, allowing you to plan ahead. Having these documents in place can help your loved ones and medical providers understand your wishes if you become unable to communicate them yourself.

Why Do You Need Both a Will and a Power of Attorney?

Estate planning is about more than deciding who receives your property after you die. A comprehensive South Carolina estate plan should also consider what could happen if you become incapacitated during your lifetime. Having both a will after death and a living power of attorney can ensure that your needs are always taken into account, no matter the situation.

Your documents can serve different purposes:

• Will: Establishes your wishes for the distribution of your estate after death.
• Durable Power of Attorney: Allows someone you designate to handle certain financial and legal matters on your behalf during your lifetime.
• Health Care Power of Attorney: Designates someone to make health care decisions if you are unable to make them yourself.
• Living Will: Communicates your wishes regarding certain end-of-life medical treatment.

Together, these documents can provide a framework for managing both your affairs during your lifetime and the administration of your estate after death.

Start Your South Carolina Estate Planning Journey

Having a will is an important step, but it may not address every situation you or your family could face. Your estate plan should reflect your individual circumstances, including your family, property, finances, and personal wishes. If you have a will but have not established or reviewed your power of attorneys or living will, now may be a good time to review your complete estate plan.

The attorneys at Grand Strand Law Group are here to help you understand your options and create a plan. Our estate law professionals can guide you through every step of the process, making life decisions smooth and easy. Give us a call at 843.492.5422. Learn about how we can help with your estate planning journey now or in the future.