Oftentimes, there are estate planning tools (such as trusts, wills, and powers of attorney) that an individual can develop with the help of a Wills and Trusts attorney in order to plan for the future. Most individuals are able to contemplate what to do with their assets once they are gone, or what end of life care they would want. However, it is often harder for individuals to imagine a time when they may show a decline in mental capabilities, leaving them, and their assets, vulnerable. In the event that an individual has not planned ahead, it may be necessary for a family member, or even a concerned third party, to initiate an action in the South Carolina Probate Courts to have a person declared incapacitated and to appoint a Guardian or Conservator for them. Here are some basics to navigating Guardianships and Conservatorships in our State:
What is Incapacity?
South Carolina Code Section 62-5-101 defines “incapacity” as an individual’s inability to effectively receive or evaluate information, or make decisions, in a way that he or she cannot care for their own physical health or safety, and cannot manage his or her own property or financial affairs. This definition can include someone who is of advanced age, has a physical illness, has a developmental disability, or mental illness, among other things. In every proceeding for a Guardianship or Conservatorship, the testimony of a licensed medical professional will be necessary to opine on an individual’s incapacity.
What is a Guardian?
A Guardian is a person, or agency, that has been appointed by the Probate Court to handle the physical person when one can no longer look after his or her own physical well-being. The decision to appoint a Guardian must be approved by the Probate Court through a Guardianship proceeding. Once appointed, a Guardian, which often can be a close family member, is able to make decisions regarding where the incapacitated person will live as well as all medical and healthcare decisions. It is important to keep in mind that South Carolina statutes list persons that may have priority to be appointed as a Guardian, such as previous agents under Powers of Attorney, or a spouse. The person ultimately appointed as the Guardian must file a report with the Probate Court each year.
A Guardian differs from a Guardian ad Litem in that a Guardian ad Litem is an individual (typically an independent third-party attorney) appointed during the pendency of a Probate Court proceeding to represent the alleged incapacitated individual, investigate the allegations of the Petition filed, and look out for the incapacitated individual’s best interests.
What is a Conservator?
In South Carolina, a guardianship involves decisions for the person, but not decisions involving money or other assets, such as real property. In the event that protection over an incapacitated person’s assets is needed, an interested person may request that the Probate Court appoint a conservator to protect money and property. Like a Guardian, a Conservator also has to update the Probate Court by submitting forms and inventories. South Carolina Code Section 62-5-408 designates individuals that have priority of appointment for this role.
Ultimately, the Probate Court will have to assess the evidence presented by the Petitioner, the Respondents in the action, the Guardian Ad Litem, and any witnesses presented at a hearing to appoint a Guardian or Conservator. The Court will have ultimate authority to appoint a Guardian or Conservator, and will do so upon clear and convincing evidence that these appointments are necessary to protect the alleged incapacitated individual. The process for appointment is lengthy and can be costly. It is best to consult an Attorney to determine the best options for each specific case.