In South Carolina, guardianship and conservatorship are legal terms that are often used interchangeably to refer to appointing someone to make decisions on behalf of another person who cannot do so for themselves.
The process of appointing a guardian or conservator begins with a petition filed with the probate court in the county where the person needing representation (the “ward”) resides. The court will then hold a hearing to determine whether guardianship or conservatorship is necessary and, if so, who should be appointed.
Once someone has been appointed as a guardian or conservator, they must report periodically to the court on the status of the ward and their finances. They may also be required to provide a bond to the court to ensure that they will fulfill their duties in a proper and responsible manner.
Guardianship in South Carolina
If an adult in South Carolina is unable to understand their medical needs and make reasonable medical decisions, the Probate Court can appoint a Guardian to make those decisions on their behalf.
The Guardian is responsible for making decisions about where the incapacitated individual will live and what kind of care they will receive, including mental and physical health care decisions. In addition, the Guardian must report yearly to the Probate Court about their service as Guardian.
Conservatorship in South Carolina
The Probate Court can appoint a Conservator for someone who cannot make their own financial decisions. The Conservator is responsible for managing the finances and property of the incapacitated individual.
They must also report periodically to the court about the incapacitated person’s assets, receipts, and disbursements. The Court highly monitors the Conservatorship. The Conservator will be required to either obtain a fiduciary bond or create a restricted conservatorship account.
Filing a Guardianship or Conservatorship Case
Incapacity means that the person cannot 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 or Conservatorship case, the applicant should review the requirements and duties of serving in these roles. A Guardianship or Conservatorship case is started by filing a Summons and Petition, along with other required documentation, with the Court.
The person initiating the case, the petitioner, must also have the A.I.I.’s physician complete an Examiner Report. In addition, the petitioner must provide the Court with a certified South Carolina Law Enforcement Division (SLED) background report of the person seeking to be appointed and a full credit report of the person seeking to be appointed.
Once all the necessary paperwork has been filed with the Court, the petitioner must serve all of the documentation on the A.I.I. and their closest family members. The court will appoint an attorney and guardian ad litem for the A.I.I. at the petitioner’s expense 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.
The South Carolina Probate Code provides for the appointment of a guardian or conservator for a person who is unable to manage their own affairs. A guardian or conservator is responsible for managing the ward’s property or person and making decisions concerning the ward’s welfare per the terms of the court’s order.
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