What can I do if I think a power of attorney agent is taking money or not using it to care for my relative? – South Carolina

Short Answer

In South Carolina, a power of attorney agent must use the older relative’s money for the relative’s benefit, act in good faith, stay within the authority granted, and keep records. A concerned family member may report suspected exploitation or neglect to the proper adult-protection agency and may ask the probate court or circuit court to review the agent’s conduct, order an accounting, or stop misuse; the probate court may appoint a conservator or guardian if needed. A new power of attorney can be signed only by the relative if the relative still has legal capacity; otherwise, court action is usually the path to replace control.

Understanding the Problem

The issue in South Carolina is whether a concerned relative can stop a power of attorney agent who may be taking funds, failing to pay for care, or neglecting basic home needs, and whether that relative can obtain authority to replace the agent. The key trigger is suspected misuse of the older relative’s money or failure to use available funds for the relative’s care while the agent controls finances under a power of attorney.

Apply the Law

South Carolina separates three ideas that often get mixed together. First, a financial power of attorney is a private document signed by the principal, meaning the person who gave authority to the agent. Second, an agent is a fiduciary and must use that authority for the principal’s benefit. Third, if the principal cannot safely protect finances or personal care, the probate court may need to appoint a conservator for money matters, a guardian for care decisions, or both.

A family member generally cannot simply “take over” or create a new power of attorney for an older relative. If the relative still has capacity, the relative may revoke the old power of attorney and sign a new one that meets South Carolina signing requirements. If the relative lacks capacity or is being isolated, the safer route is to gather records, report immediate safety concerns, and ask the court to review the agent’s conduct or appoint a court-supervised fiduciary. For more background on this distinction, see power of attorney versus guardianship in South Carolina.

Key Requirements

Standing to act: The person raising the concern must fit a category allowed to ask the court to review the power of attorney, such as the principal, spouse, parent, adult descendant, presumptive heir, caregiver, certain beneficiaries, a protective agency, or another person with enough interest in the principal’s welfare.
Agent misconduct or risk: The concern should connect to a duty the agent owes, such as using money for the principal’s benefit, avoiding harmful conflicts, keeping records, paying for care and maintenance when authorized, and acting only within the power of attorney.
Proper forum and remedy: Power of attorney disputes may be brought in probate court or circuit court. Guardianship matters generally proceed in the probate court where the alleged incapacitated individual resides or is present, while conservatorship matters generally proceed in the probate court where the alleged incapacitated individual resides or, if the person does not reside in South Carolina, where the person has property or the right to take legal action.
Capacity matters: A principal with capacity may revoke or replace an agent. If the principal lacks capacity, a court order, conservatorship, guardianship, or protective-services proceeding may be needed instead.

What the Statutes Say

S.C. Code Ann. § 62-8-114 (Power of attorney agent duties) – requires the agent to act in good faith, within authority, for the principal’s benefit, and to keep records; when a proper request is made, the agent generally must respond within 30 days or explain the need for up to 30 more days.
S.C. Code Ann. § 62-8-116 (Judicial review of agent conduct) – allows listed family members, caregivers, protective agencies, and others with sufficient interest to petition a court to review the agent’s conduct and grant relief.
S.C. Code Ann. § 62-8-117 (Agent liability) – makes an agent who violates the power of attorney law liable to restore the principal’s property and reimburse certain attorney’s fees and costs paid from the principal’s funds on the agent’s behalf.
S.C. Code Ann. § 62-8-110 (Termination and revocation of power of attorney) – explains when a power of attorney or agent’s authority ends, including revocation by the principal and resignation, death, incapacity, or removal of the agent in certain circumstances.
S.C. Code Ann. § 62-8-401 (Jurisdiction over powers of attorney) – gives South Carolina probate court concurrent jurisdiction with circuit court over creation, exercise, construction, and termination of powers of attorney.
S.C. Code Ann. § 43-35-10 (Vulnerable adult exploitation and neglect definitions) – defines exploitation to include improper or unauthorized use of a vulnerable adult’s funds, property, power of attorney, guardianship, or conservatorship.
S.C. Code Ann. § 43-35-25 (Reporting abuse, neglect, or exploitation) – requires listed reporters, and any person with actual knowledge, to report vulnerable adult abuse, neglect, or exploitation within 24 hours or the next working day.
S.C. Code Ann. § 62-5-403 (Conservatorship and protective proceedings) – allows a petition when an adult cannot manage property effectively and the power of attorney agent is not adequately preventing waste or dissipation, or the agent lacks authority to do what is needed.

Analysis

Apply the Rule to the Facts: The stated facts involve suspected financial exploitation of an older relative and possible neglect of basic needs and home upkeep. Those concerns map directly to the agent’s duties to act for the principal’s benefit, keep transaction records, and use granted authority only for the principal’s best interest. If the older relative still has capacity, the relative may revoke the current agent and sign a new South Carolina-compliant power of attorney. If capacity is impaired or the agent blocks access to information, a court review, adult-protection report, conservatorship, or guardianship petition may be needed.

For example, if the agent has authority over bank accounts but is not paying for food, medicine, utilities, or necessary home repairs, the issue is not just family disagreement; it may show a failure to use the principal’s assets for maintenance and care. If the agent cannot explain withdrawals or refuses to provide records after a proper request or court order, that refusal may support a request for court supervision or replacement.

Process & Timing

Who files: A spouse, adult child, presumptive heir, caregiver, protective agency, or other person with sufficient interest may file, depending on the requested remedy. Where: For power of attorney review, the South Carolina probate court or circuit court may hear the matter; for guardianship, file in the probate court where the alleged incapacitated individual resides or is present; for conservatorship, file in the probate court in the county where the alleged incapacitated individual resides, or if the person does not reside in South Carolina, in a county where the person has property or the right to take legal action. What: A summons and petition asking for review of the agent’s conduct, an accounting, limits on the agent, a conservator, a guardian, or other protective relief. When: File promptly when funds, housing, utilities, medical care, or safety appear at risk; an agent asked by a proper person or agency to account generally has 30 days to comply or explain why more time is needed.
Report safety concerns: If the older relative lives at home or in another non-facility setting, a report generally goes to the Adult Protective Services Program in the Department of Social Services. If the relative lives in a covered facility, the Long Term Care Ombudsman Program usually investigates noncriminal reports. If there is an emergency, serious injury, suspected criminal conduct, or immediate danger, law enforcement should be contacted right away.
Seek records and court review: The petition should identify the power of attorney, the agent, the suspected transactions or neglected needs, and the relief requested. The court can review the agent’s conduct, order records, and consider relief tailored to the principal’s welfare.
Replace authority if needed: If the principal has capacity, the principal may sign a revocation and new power of attorney. If capacity is lacking, the probate court may appoint a conservator for financial matters or a guardian for personal care matters, and appointment may terminate the agent’s authority within the scope of the court order.
Follow court safeguards: In guardianship and conservatorship cases, South Carolina procedure includes service on the alleged incapacitated individual and required co-respondents, notice of the right to counsel, and possible appointment of counsel, a guardian ad litem, and an examiner. These safeguards help the court protect the relative’s rights while addressing the alleged risk.

Exceptions & Pitfalls

A disagreement is not always misconduct: An agent does not breach a duty merely because family members dislike spending choices, investment losses occur, or the agent also has an inheritance interest. The focus is whether the agent acted in good faith, within authority, and for the principal’s benefit.
Capacity controls the power to sign a new document: A relative cannot obtain a power of attorney for another adult by signing paperwork for that adult. If the older relative lacks capacity, court authority usually replaces private signing.
Privacy limits informal demands: South Carolina law does not let every concerned person demand financial records directly from the agent. The statute allows accounting requests by the principal, a guardian, a conservator, another fiduciary, a protective government agency, or after death by the personal representative or successor in interest, unless the court orders otherwise.
Use the right agency: Home-based neglect and exploitation reports generally go to Adult Protective Services, while facility matters often go to the Long Term Care Ombudsman Program. Reports involving reasonable suspicion of criminal conduct may be referred to local law enforcement or SLED.
Do not wait for perfect proof: Bank records, unpaid bills, photographs of home conditions, care notes, missed medical appointments, shutoff notices, and witness names can help. A report or petition can explain known facts and ask the proper agency or court to investigate.
Consider the right court tool: A petition to review the agent may be enough when the main concern is missing money or refusal to account. A conservatorship may be needed when funds must be managed going forward. A guardianship may be needed when personal care, housing, or medical decision-making cannot be handled safely. More detail on court appointment is available in this article about seeking guardianship or conservatorship for an incapacitated relative in South Carolina.
Recorded documents need recorded revocations: If the power of attorney was recorded, South Carolina law requires a revocation to be recorded in the same county as the recorded power of attorney unless the document provides otherwise.

Conclusion

In South Carolina, suspected misuse of a power of attorney can be addressed through adult-protection reporting, court review of the agent’s conduct, an accounting, and, when capacity is lacking, guardianship or conservatorship. A relative cannot simply take over the power of attorney unless the older relative still has capacity and chooses to sign a new document. The key next step is to file a petition in the proper South Carolina probate court promptly, especially when funds, housing, medical care, or safety are at risk.

Talk to a Estate Planning Attorney

If a power of attorney agent may be misusing an older relative’s money or failing to pay for care, our firm has experienced attorneys who can help review the documents, identify the right court or agency process, and protect important timelines.

Disclaimer: This article provides general information about South Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed South Carolina attorney.