The court noted, “A guardian, unlike a conservator, is appointed to protect the person of the incapacitated person.
The dispositive issues having been decided, any remaining issues on appeal need not be addressed. For the reasons discussed, the order of the circuit court affirming the order of the probate court is AFFIRMED. W.2d at 234 (upholding the trial court's determination that the rescission of a power of attorney on grounds of mental incapacity was an equitable cause of action).2.
Furthermore, the family court lacks jurisdiction to declare an adult incompetent because the probate court has exclusive jurisdiction over such matters. In contrast to Verdery's offer of proof, Daniels and her husband produced five witnesses who testified to Thames' mental capacity in December of 1996.
Although the family court's order makes several references to Thames as incompetent and unable to manage her affairs, such language was mere dicta since it was irrelevant to the court's decision to hold Thames' husband in contempt. She also testified Daniels knew her mother lacked mental capacity to execute such instruments.
South Carolina has defined contractual capacity as a person's ability to understand, at the time the contract is executed, the nature of the contract and its effect.
Therefore, in order to execute or revoke a valid power of attorney, the principal must possess contractual capacity. Other jurisdictions addressing this issue have found contractual capacity is required to execute a power of attorney. MOREOVER, “ [p]ersons of unsound minds, like infants, are under the special protection of the courts of equity with respect to their persons, property, and legal transactions.” Shepard v.
The other two witnesses, Angela Hester and Daniels, were present on December 16, 1996, when Thames revoked her prior power of attorney and executed a new one.
Likewise, when Josey saw Thames on December 23 and 25, 1996, Thames was “cooperative and talkative” in addition to being oriented to time, place and person. Givens, Thames' personal physician, saw Thames on December 12, 1996, and approximately thirteen other times between September 1993 and August 1997. Givens said he had not conducted a detailed mental exam of Thames, he testified that each time he saw her, Thames was pleasant, answered his questions, and was oriented to time and place.
Thus, under either a legal or equitable standard of review, we find the evidence contained in the record fully supports the probate court's finding that Thames possessed the requisite mental capacity to execute the documents in question on December 16, 1996. E.2d at 658 (recognizing a power of attorney is derived from the law of contracts); see also Younggren, 556 N.
However, this broad scope of review does not require the appellate court to ignore the findings below when the trial court was in a better position to evaluate the credibility of the witnesses. Daniels testified she went with her mother to the attorney's office and Thames “knew exactly what she was doing” when she signed the disputed documents on December 16, 1996. The unappealed decision of the trial court, right or wrong, is the law of the case.
Under a consent order in that case, Thames remained in Verdery's home, but other family members, including her husband, were granted limited visitation.
The order also prohibited family members from discussing or transacting business during these visits. Thames in contempt after he, Daniels, and Daniels' son, during a visit with Thames, took her to a bank where she withdrew money and refused to return her to Verdery's home.
Verdery argues that her cause of action is akin to an action to set aside a deed or petition signature on the basis of mental incompetence, which is an action in equity.