## Facts

- Doris W. Thames, then in her late eighties, had two daughters, Doris W. Verdery and Betty Jane Daniels; Daniels’s husband, C. Covert Daniels, was also involved in the dispute.
- By late 1995, Thames left her marital home and lived with Verdery.
- In March 1996, Verdery sought guardianship and conservatorship over Thames alleging dementia; the probate court declined, finding Thames mentally competent.
- In May 1996, Thames executed a durable power of attorney naming Verdery as attorney-in-fact.
- Separate family-court litigation involving Thames’s husband resulted in a contempt order that included statements that Thames was not competent to manage her affairs and had significant memory problems.
- In a later probate proceeding brought by Thames’s husband, the probate court found Thames an “incapacitated person” for guardianship purposes, emphasizing her inability to independently maintain her physical condition (nutrition, hygiene, and personal care), and appointed the husband as guardian.
- On December 16, 1996, Thames executed a new durable power of attorney naming Daniels and contemporaneously revoked the May 1996 power of attorney in favor of Verdery.
- Verdery filed a probate action to set aside the December 16, 1996 power of attorney and the revocation, alleging Thames lacked capacity on that date.
- At the capacity hearing, Daniels offered testimony from three physicians who examined Thames in December 1996 and from a legal assistant who witnessed execution and testified Thames appeared to understand the document.
- The probate court dismissed Verdery’s challenge, finding Thames competent on December 16, 1996; the circuit court affirmed.

## Issues

1. Whether Thames lacked the mental capacity on December 16, 1996 to execute a durable power of attorney in favor of Daniels and to revoke the prior power of attorney in favor of Verdery.
2. Whether prior orders describing Thames as “not competent” or “incapacitated” had preclusive effect, or otherwise required a finding of incapacity to execute the December 16, 1996 instruments.

## Decision

- The South Carolina Court of Appeals affirmed the circuit court and probate court.
- The court held the evidence supported the probate court’s finding that Thames had capacity on December 16, 1996 to execute the new power of attorney and revoke the earlier one.
- The court rejected the argument that earlier family-court and guardianship findings conclusively established lack of capacity for the December 16, 1996 transaction.
- The court deferred to the probate court’s credibility determinations and fact-finding because they were supported by evidence, including contemporaneous medical and witness testimony.

## Legal Principles

- Capacity to execute a power of attorney requires sufficient understanding of the nature and effect of the act at the time of execution.
- Capacity is assessed at the time the instrument is executed; evidence of incompetence at other times may be relevant but is not conclusive.
- A guardianship finding of “incapacity,” especially when based substantially on physical inability to care for oneself, does not automatically negate transactional capacity to execute a power of attorney.
- Collateral estoppel applies only when the identical issue was actually litigated and essential to the prior judgment; prior orders in different proceedings under different standards do not necessarily preclude later litigation over capacity on a specific date.
- Appellate review gives deference to the probate court’s supported factual findings and credibility choices, even where the record contains conflicting evidence.

## Conclusion

The court upheld the December 16, 1996 durable power of attorney naming Daniels and the revocation of the earlier power of attorney favoring Verdery, ruling that prior judicial statements about incompetence were not determinative of Thames’s capacity on the execution date and that the probate court’s competency finding was supported by the evidence.


Thames v. Daniels, 344 S.C. 564, 544 S.E.2d 854 (Ct. App. 2001)