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Guardianships/ Conservatorships

It’s difficult to see a loved one develop an illness that alters their ability to care for themselves and make decisions that are in their best interest. Fortunately, South Carolina law allows for someone to step in and assist your loved one through the court appointment of a Guardian and/or Conservator. 

Has someone in your life reached the point where they can no longer act in their best interest? Do you have a child with special needs who you worry won’t be able to take care of themselves after they turn 18? If you have questions about your legal options and obligations for taking care of them, contact our team at Weeks and Irvine, LLC, to discuss your situation and what action may be best for you and your loved ones. 

An Adult Guardian And/or Conservator May Be Appointed in Two Main Instances: 

  • If an adult, without a Power of Attorney in place, suffers an injury or develops an illness that renders them incapacitated. 
  • If a person lacks capacity from the outset.

What Is a Guardianship?

A guardianship is a court-ordered legal relationship where a competent adult (the guardian) is appointed to care for and make personal decisions on behalf of the incapacitated adult. In a guardianship proceeding, the Probate Court will appoint a person, institution, or agency to control and manage another person’s personal decisions, such as medical decisions, decisions about housing, and other decisions about their physical being.

What Does a Guardian Do?

After a Court deems an adult to be incapacitated pursuant to S.C. Code Ann. § 62-5-101, a Guardian has the authority to make important decisions for the “ward”, such as: 

  • where the ward will live
  • assisting with a healthcare plan concerning the ward’s physical and mental healthcare
  • their comfort and personal maintenance
  • their everyday needs

What Is a Conservator?

A Conservatorship is a court-ordered legal relationship where a competent adult (the conservator) is appointed to manage the ward’s financials. In a conservatorship proceeding, the Probate Court will appoint a person, institution, or agency to control and manage another person’s finances after a finding of incapacity.

Can I be Appointed as a Conservator for a Minor?

Yes. South Carolina law allows for a Conservator to be appointed for a minor in several instances. For example, if a minor child inherits an interest in proceeds from the sale of a home after a parent passes away, a conservator may be appointed to manage those proceeds.

How Do I Know If I Need a Guardian or Conservator to Be Appointed?

An individual, typically a family member or loved one, will first need to petition the Probate Court for a finding of incapacity. A hearing will then be scheduled to determine whether the individual is actually incapacitated and incapable of making decisions that are in their best interest. During this hearing, the Court will hear testimony from medical professionals and loved ones to determine capacity. If the Court determines that the potential “ward” is incapacitated, the Court may appoint a guardian and/or conservator to assist the person. 

A guardian and/or conservator may be appointed by the Court for an adult who suffers from: 

  • A controlling physical or mental illness
  • Disability 
  • Advanced age-related conditions such as dementia
  • Drug or alcohol abuse

What Happens after I’m Appointed As Guardian Or Conservator By The Court?

Once appointed by the Probate Court, you are required to act as a fiduciary. Meaning, you will be required to act in the best interest of your loved one to ensure that their needs are being met. The activities of a Guardian and Conservator are monitored by the Court through periodic, mandatory reporting. 

If you’re considering the need for a guardian or conservator for your loved one, Weeks and Irvine, LLC can assist. Contact us for more information on the process.

 

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