How can I challenge a co-agent’s actions if I suspect misuse of the power of attorney? – South Carolina

Short Answer

In South Carolina, a co-agent’s suspected misuse of a power of attorney is usually challenged by asking the court to review the agent’s conduct and order appropriate relief, such as an accounting, limits on authority, or other corrective orders. South Carolina law also imposes duties on agents (including recordkeeping and acting in the principal’s best interest), and it can require a co-agent who knows about a breach to notify the principal and take reasonable steps to protect the principal. The right approach depends on whether the principal is still able to act and what proof exists of misuse.

Understanding the Problem

In South Carolina probate and fiduciary disputes, the core question is: when two people are named as co-agents under a power of attorney, can one co-agent challenge the other co-agent’s actions when there is concern the power of attorney is being used in a way that harms the principal? The issue typically turns on what the power of attorney authorizes, whether the agent stayed within that authority, and whether the agent followed the duties South Carolina law imposes on anyone acting as an agent. The practical goal is usually to stop questionable transactions, get records, and protect the principal’s property and decision-making.

Apply the Law

South Carolina has adopted a version of the Uniform Power of Attorney Act in Title 62. Under that framework, an agent must act in good faith, within the authority granted, and in the principal’s best interest. Co-agents may be allowed to act independently unless the document requires joint action. If misuse is suspected, South Carolina law allows certain people (often including family members and others with a sufficient interest in the principal’s welfare) to petition the court to construe the power of attorney, review the agent’s conduct, and grant appropriate relief. A key practical tool is an accounting and production of records, because agents have recordkeeping duties and may be required to disclose transactions after a proper request or court order.

Key Requirements

Authority and scope: The challenged act must be outside the authority granted by the power of attorney, or inconsistent with how the document requires co-agents to act (for example, if the document requires joint signatures but one co-agent acted alone).
Breach of agent duties: Misuse often shows up as failure to act in the principal’s best interest, self-dealing that violates the duty of loyalty, conflicts of interest that impair impartial decision-making, or failure to keep and produce records.
Proper court petition and proof: The court process generally requires a petition asking the court to review conduct and order relief, supported by specific facts (transactions, missing records, unexplained transfers, or patterns of spending inconsistent with the principal’s needs and expectations).

What the Statutes Say

S.C. Code Ann. § 62-8-111 (Coagents and successor agents) – Explains how co-agents can act (often independently unless the document says otherwise) and requires action if a co-agent has actual knowledge of another agent’s breach or imminent breach.
S.C. Code Ann. § 62-8-114 (Agent’s duties) – Requires good faith, acting within authority, loyalty, avoidance of harmful conflicts, recordkeeping, and sets rules for when disclosures/records can be demanded and the time to respond.
S.C. Code Ann. § 62-8-116 (Judicial relief) – Allows specified people to petition the court to construe a power of attorney, review an agent’s conduct, and grant appropriate relief.
S.C. Code Ann. § 62-8-115 (Exoneration of agent) – Limits clauses that try to excuse an agent from liability, especially for dishonest, bad-faith, reckless, willful, grossly negligent, or fraudulent conduct.

Analysis

Apply the Rule to the Facts: When misuse is suspected, the first step is to compare the co-agent’s transactions to the power of attorney’s grant of authority and any co-agent instructions (independent versus joint action). Next, the focus shifts to whether the co-agent complied with South Carolina’s agent duties—especially acting in the principal’s best interest and keeping records of receipts, disbursements, and transactions. If records are missing, transfers are unexplained, or the transactions appear to benefit the agent at the principal’s expense, those facts typically support asking the court to review conduct and order relief.

Process & Timing

Who files: Often the principal (if capable), a co-agent, or another person authorized under South Carolina’s judicial relief statute. Where: the appropriate South Carolina court with jurisdiction to review the power of attorney dispute (often handled in the probate/fiduciary context, depending on the county and posture). What: a petition asking the court to construe the power of attorney and review the agent’s conduct, typically requesting an accounting/records and specific relief. When: as soon as there are concrete red flags, especially if assets are being moved or sold.
Request records and an accounting: Because agents must keep records, a targeted written request for receipts, bank statements, and transaction logs can clarify what happened. If the request is made by a person entitled to demand disclosure under the statute, the agent generally must respond within the statutory timeframe or explain why more time is needed.
Seek immediate protective orders if needed: If there is a risk of ongoing transfers, the petition can ask for orders that limit the co-agent’s authority, require dual signatures, freeze certain actions, or require periodic reporting while the case is pending.

Exceptions & Pitfalls

The power of attorney may allow independent action: In South Carolina, co-agents can often act independently unless the document requires joint action, so “acting alone” is not automatically misuse.
Not every unfair-looking transaction is a breach: Some transactions may be authorized and still comply with the principal’s known expectations and best interests. The strongest challenges usually tie the conduct to missing records, conflicts of interest, or actions outside the document’s authority.
Failure to act after learning of misuse: South Carolina law can impose liability on a co-agent who has actual knowledge of another agent’s breach or imminent breach and does not notify the principal and take reasonable steps to protect the principal.
Overreliance on “liability waiver” language: Even if the document tries to limit an agent’s liability, South Carolina law restricts waivers for dishonest, bad-faith, reckless, willful, grossly negligent, or fraudulent conduct.
Evidence problems: Waiting too long can lead to missing bank records, closed accounts, or unclear timelines. Early preservation of statements, receipts, and communications often matters.

Conclusion

In South Carolina, suspected misuse by a co-agent is challenged by focusing on (1) whether the co-agent acted within the power of attorney’s authority and co-agent rules, and (2) whether the co-agent complied with statutory duties like good faith, loyalty, and recordkeeping. A common next step is to file a petition for judicial relief asking the court to review the agent’s conduct and order appropriate relief, including an accounting and production of records. If records are requested under the statute, the agent typically must respond within 30 days (or explain the need for more time).

Talk to a Probate Attorney

If there is concern that a co-agent is misusing a South Carolina power of attorney, a probate attorney can help evaluate the document, identify the strongest red flags, and prepare a court petition that seeks practical relief such as records, an accounting, and limits on further transactions.

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.