Guardianship And Conservatorship In South Carolina

Posted On February 15, 2023

Under South Carolina law, if an adult cannot understand their medical needs and cannot make reasonable medical decisions, the Probate Court can determine that they are incapacitated and can appoint someone else to act as that person’s Guardian. A Guardian is responsible for deciding where the incapacitated individual will live and make provisions for their care, comfort, and maintenance, including mental and physical health care decisions. A court appointed Guardian must make yearly reports to the Probate Court regarding their service as Guardian.

If someone cannot make their own financial decisions, then the Probate Court can determine that they are incapacitated and appoint someone to act as that person's Conservator. A Conservator is responsible for safekeeping and managing the financial affairs and property for the incapacitated individual. A court appointed Conservator must report periodically to the court about the incapacitated person’s assets, receipts and disbursements. Conservatorships are highly monitored by the Court as no expenditures can occur without written request and Court order. A Conservator will also be required to either obtain a fiduciary bond (based on the total value of the protected person's assets plus estimated income) or create a restricted conservatorship account to ensure the Conservator carries out their duties faithfully and appropriately.

A Probate Court will typically only appoint a Guardian and Conservator if the person is incapacitated and if there is no less-restrictive alternate to ensure the well-being of the person. Incapacity means that the person lacks the ability to effectively receive, evaluate, and respond to information or make or communicate decisions such that a person, even with appropriate, reasonably available support and assistance cannot meet the essential requirements for their physical health, safety, or self-care, necessitating the need for a Guardian; or manage their property or financial affairs or provide for their support of for the support of their legal dependents, necessitating the need for a Conservator. Before filing a Guardianship/Conservatorship case, the applicant should review the requirements and duties of serving in these roles.

Initiating a Guardianship/Conservatorship case requires quite a bit of paperwork, including a Summons and Petition; an Examiner Report (completed by the incapacitated person’s physician); a certified SLED background report of the person seeking to be appointed; a full credit report of the person seeking to be appointed; and several other documents. Collecting this paperwork is time intensive and requires quite a bit of personal information regarding the applicant and the alleged incapacitated individual (A.I.I.). Once all of the necessary paperwork has been filed with the Court, all documentation must be served upon the A.I.I. and their closest family members.

At that point, the Court will appoint an attorney and a Guardian ad Litem for the A.I.I. at the cost of the petitioner, unless otherwise directed by the Court. The attorney will represent the A.I.I.’s position on the Guardianship/Conservatorship to the Court, and the Guardian ad Litem will represent the A.I.I.’s best interests to the Court, which may be different. Once the A.I.I.’s attorney and Guardian ad Litem have had the chance to meet with the A.I.I., the Probate Court will hold a hearing to determine whether the A.I.I. is truly incapacitated, if they need a Guardian and/or Conservator, and who should serve in this role. If the Probate Court judge decides that the A.I.I. cannot make their own medical or financial decisions, then the Court will appoint the best suited person to serve as the Guardian/Conservator.

This is general information only and is not legal advice; this does not create an attorney-client relationship. For more information, please contact Attorney Jessica Ferguson and request a consultation.