Could a properly certified copy of a power of attorney be recorded in South Carolina?

Plain-English summary

A lawyer pointed out a statute that an earlier Attorney General opinion had missed when it said only an original power of attorney could be recorded. In December 2002, the AG agreed that its November 2000 informal opinion was erroneous and expressly superseded it. The AG concluded that a properly certified copy of a power of attorney could be recorded under Section 30-5-220.

The opinion quoted the statute's provision for authenticated photostatic or photo-recording copies of legal papers. It also cited earlier AG opinions recognizing that qualifying copied attachments and xerox copies could be recorded. Its answer was about copies properly certified under the section; it did not say every unauthenticated copy qualified.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the AG require the original power of attorney in this opinion? A: No. It withdrew its earlier contrary conclusion and said a properly certified copy could be recorded.

Q: What statutory condition mattered?
A: The copy had to meet Section 30-5-220's requirements for an authenticated photostatic or photo-recording copy.

Q: Did the earlier 2000 AG opinion remain in effect?
A: No. The 2002 opinion expressly superseded its conclusion on this point.

Background and statutory framework

Section 30-5-220 supplied the recording authority the earlier opinion had omitted. The AG quoted its authentication and legal-effect language, then applied it to a certified power-of-attorney copy.

Citations and references

• Section 30-5-220: statute permitting recording of qualifying authenticated copies.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/december-11-2002-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2002/04/02dec-11-laws.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLIE CONDON
ATTORNEY GENERAL

December 11, 2002

J. Terry Laws, Esquire
Eight Whitsett Street
Greenville, South Carolina 29601
Dear Mr. Laws:
You have brought to my attention that an Informal Opinion which I authored, dated November 3, 2000, did not consider a controlling statute, thus making the opinion erroneous. I agree. Upon consideration of the materials which you have submitted, the Infom1al Opinion of November 3, 2000 is superseded by the following opinion.

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The question considered in the earlier opinion was "whether a certified copy of a power of attorney, certified by the register of deeds office from another county or state, is recordable." Therein, I concluded that absent statutory authority to the contrary, only an original instrument is entitled to be recorded. My opinion was based upon an earlier 1966 opm1on of this Office, Op. No. 1958 (December 28, 1966), wherein we concluded that statutory authority was lacking to "permit a copy of an instrument to be recorded where the original is lost" and thus "certified copies of a deed would not be entitled to recordation." Neither the 1966 opinion nor my Informal Opinion of November 3, 2000, however, considered the impact of S.C. Code Ann. Section 30-5-220 which you reference in your letter. Such Section provides as follows:

[p ]hotostatic copies or photo-recording copies, duly authenticated by the signature of the clerk of court, or other proper official charged with the duty of recording legal papers, of any county in this State shall be sufficient compliance with the law with reference to the recording of all legal papers. Such recording shall have all of the legal incidents and effect otherwise provided by the recording laws of this State and copies of legal papers so recorded shall be admissible in evidence as such record. We have issued at least two opinions concluding that§ 30-5-220 is applicable. In an opinion dated June 22, 1982, we referenced § 30-5-220 in finding that copies of legal instruments attached to original legal documents may be recorded pursuant to § 30-5-220. Therein, we noted that a
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REMBERT

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POST OFFICE Box I 1549

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COLUMBIA,

s.c. 29211-1549

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TELEPHONE: 803-734-3970

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FACSIMil.E: 803-253-6283

Mr. Laws
Page 2
December 11, 2002

previous opinion, 1972 Op. Atty. Gen., No. 3272 at page 75, had concluded that the filing of xerox copies with a clerk of court's office was permissible under§ 30-5-220. There, it was determined that a xerox copy of a document would come within definition of a photostatic copy or photo-recorded copy for purposes of§ 30-5-220. Thus, in the 1982 opinion, we advised that "copied attachments of documents may be recorded along with the original legal documents to which they are attached provided they meet the requirements of such section. To comply with such section, such copies must be photostatic copies or photo-recording copies and be duly authenticated." Accordingly, in our opinion,§ 30-5-220 provides the legal authorization to record a certified copy of a power of attorney, properly certified in compliance with said Section. Thus, our conclusion in the earlier Informal Opinion ofNovember 3, 2000 is hereby superseded. Section 30-5220 governs such recording.

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Robert D. Cook
Assistant Deputy Attorney General

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