Protecting the Best Interests of an Incapacitated Adult – When, Where, What, Who, Why, and How

WHAT:  A Guardian is appointed to manage the personal and medical care of an incapacitated person (“ward”).  Whereas, a Conservator is appointed to manage the ward’s finances.  A Guardian is responsible for ensuring the ward has a clean, safe, comfortable, and appropriate home and for making sure the ward receives appropriate medical and health care.  Guardians should make annual reports to the Probate Court regarding the condition of the ward.  Conservators are responsible for managing and protecting the ward’s property and assets and will be required to periodically file a report with the court including receipts and inventory of the ward’s estate.   Conservators may also be required to pay a bond.  It is also possible for the court to limit the scope of an appointment; for example, for a limited duration or even limited power if the ward is able to make some, but not all, of their own decisions.  

WHY:  The threshold question is always whether or not the person alleged to need a Guardian and/ or Conservator actually lacks sufficient capacity to care for him- or herself and to manage his or her own affairs.  Incapacity may be a result of mental illness, physical illness, injury, age, or the abuse of alcohol or drugs.

WHEN:  The Court may appoint a Guardian and/ or  Conservator when it is determined the ward lacks sufficient understanding to make or communicate responsible decisions concerning his or her care or finances.  Signs a Guardianship may be warranted are if the person is not taking his or her medications as directed or is not living in a healthy environment.  A Conservatorship may be needed if the person is making irrational decisions regarding his or her money, such as giving away money, property or assets for no intended purpose, isn’t paying their bills, is failing to budget or manage finances, or is spending money a substantial amount of his or her wealth for no clear reason.   In some cases, it may not be necessary to appoint both a Guardian and a Conservator.  For example, a Conservator is not necessary if the ward has a Durable Power of Attorney and a Guardian isn’t needed if the ward has a Health Care Power of Attorney.  Also, the South Carolina Adult Health Care Consent Act permits healthcare providers to obtain consent from someone other than the patient when (and only when) the patient is “unable to consent” and most often in emergency situations.  Neither Guardianships nor Conservatorships are, necessarily, permanent.  A ward may regain capacity, in which case the appointment(s) should be lifted or an appointed person can be replaced if they are not fulfilling the responsibilities.  Both the Guardian and Conservator will be relieved of their responsibilities upon the ward’s death and the Personal Representative of the ward’s estate will assume management of the financial affairs.  

WHO:  Priority to serve as Guardian and/ or Conservator (as well as under the Adult Healthcare Consent Act) is established by statute (see SC Code Sections 62-5-311 and 62-5-410).  Most often a spouse, parent, adult child, or sibling will be appointed.  It is not necessary for the same person to be appointed as both Guardian and Conservator.  In fact, in some cases, it may be appropriate for a private third-party to serve in one or both of these capacities.  

WHERE:  In South Carolina, Guardianships and Conservatorships are managed by the Probate Court which is deemed with the responsibility of appointing a person(s) or agency to make decisions on behalf of an individual who is not able to make his or her own medical, personal and financial decisions.  Guardianship and Conservatorship cases must be filed in the county where the alleged incapacitated person currently resides (is physically present).  

HOW:  The court will commonly require a report from two (2) medical providers regarding the person’s capacity.   Pursuant to S.C. Code Section 62-5-309 (Guardianships) and S.C. Code Section 62-5-405 (Conservatorships) those persons who must be personally served with notice of the proceeding include the alleged incapacitated person, as well as his or her spouse, parents, and adult children.  The court will appoint an attorney to serve as Guardian ad Litem (GAL) for the alleged incapacitated person during the legal proceeding.  It is the GAL’s responsibility to investigate the need for the Guardianship and/ or Conservatorship and ability/ appropriateness of the proposed person to be appointed.