SC Judicial Branch

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2013-09-27-01

The Supreme Court of South Carolina

Re: Frequently Asked Questions (FAQs) in South Carolina Probate Court

Appellate Case No. 2013-001689

ORDER

The attached "Frequently Asked Questions" in South Carolina Probate Court, which were proposed by the South Carolina Access to Justice Commission, are approved and shall be posted on the South Carolina Judicial Department's website.

s/Jean Hoefer Toal
Jean Hoefer Toal
Chief Justice

Columbia, South Carolina
September 27, 2013

Alternatives to Guardianship in South Carolina
Frequently Asked Questions

WARNING: You are strongly encouraged to seek the advice of an attorney in any legal matter. If you move forward without an attorney, it may negatively affect your legal rights. If you have questions about your legal rights or the laws concerning your case, please talk with an attorney.

DISCLAIMER: The general information provided in these Frequently Asked Questions (FAQs) is not legal advice, cannot be cited as legal authority, and cannot replace the advice of a licensed South Carolina attorney. The information in these FAQs is accurate as of the date of publication. If you decide to bring a lawsuit in a South Carolina court without an attorney, you are responsible for researching the law on your own. Please note that the presiding judge decides what law applies in each case.

Guiding Principles: When a person needs help making decisions about his or her care and well-being, guardianship is one important option to consider. There are other options called least restrictive alternatives. Least restrictive alternatives encourage independence and allow a person to be involved in decisions about his or her care and well-being, while still providing protection for the person.

In some situations, guardianship may be the best choice to protect a person and that person's rights. This may be a full guardianship or a limited guardianship. Because guardianship can be very restrictive for an individual, it is important to explore other alternatives first.

Information about Least Restrictive Alternatives

What options are there besides guardianship?

Some other options are listed in the chart below.

You are strongly encouraged to seek the advice of a licensed South Carolina attorney in deciding whether a guardianship is necessary for your friend or relative.

Guardianship is not necessary for every person with a disability. Many people with disabilities are able to manage their own affairs with appropriate services and support systems.

A guardianship limits the rights of an individual and may restrict choices about where to live, who to see, and what to do. You should give serious consideration to alternatives.

Alternatives to Guardianship

Alternative	Effect of the Alternative
Representative Payee	A representative payee is appointed by a government agency to receive, manage, and spend government benefits for a beneficiary. The representative payee's authority is limited to only the government funds. Usually, this applies to Social Security. For more information, see http://www.socialsecurity.gov/payee/.
Health Care Power of Attorney (HCPOA)	A health care power of attorney (HCPOA) is a document that allows you to name another person to make health care decisions if you are unable to do so. The document may include guidance about the type and extent of health care desired. For more information, see http://aging.sc.gov/legal/Pages/LivingWillAndPowerOfAttorney.aspx. Note: When you die, the HCPOA is no longer valid.
Adult Health Care Consent Act	The Adult Health Care Consent Act is a South Carolina law that may provide legal authority for certain people ( for example, spouses, children or parents) to make health care decisions for an adult who cannot make or communicate such decisions. For more information, see S.C. Code Ann. §§ 44-66-10 et seq. at http://www.scstatehouse.gov/code/t44c066.php.
Durable Power of Attorney (DPOA)	A durable power of attorney (DPOA) is a legal document that may give another person the authority to make decisions. This document may affect property, assets, money, debts, health care, and pets. For more information, see S.C. Code Ann. § 62-5-501 at http://www.scstatehouse.gov/code/t62c005.php. Note: When you die, the DPOA is no longer valid.
Living Will	A living will is a very limited document that controls treatment you do or do not want to receive when you are about to die. In South Carolina, a living will is also known as a Declaration of Desire for a Natural Death. For more information, see http://aging.sc.gov/legal/Pages/LivingWillAndPowerOfAttorney.aspx Note: This document is not the same as your Last Will and Testament. This document is not the same as your HCPOA. Note: When you die, the living will is no longer valid.
Health Care Advance Directive	A health care advance directive may combine the health care power of attorney and living will documents into one document.
Joint Ownership	Joint ownership occurs when more than one person has authority over assets, such as bank accounts, house/land (called real property), and vehicles. Note: There are several types of joint ownership, and the particular type used could affect ownership of the property after the death of a joint owner.
Trust	A trust is a legal document that gives authority to a person called a trustee to manage some or all of your assets for you or another person's benefit.
Protective Order/ Conservatorship	A protective order or conservatorship protects your assets and may provide other protections as ordered by the Probate Court.
Case/care management	Case or care managers are people who have been trained to assist with personal care. Examples of assistance may include: arranging health appointments managing medication helping with paperwork assisting with transportation
Money Management	Money management services help people with their financial affairs, including check depositing and writing, checkbook balancing, bill paying, insurance claim preparation, tax preparation and counseling, and public benefit applications and counseling.

What other resources are there for assistance?

Some other resources include:

South Carolina Lt. Governor's Office on Aging – This state agency provides information and services to seniors and vulnerable adults. The Elder Rights Division includes the State Long Term Care Ombudsman and staff who advocate for vulnerable adults in long term care facilities. For more information, see http://aging.sc.gov/Pages/default.aspx.

South Carolina Bar Lawyer Referral Service – This is a free, statewide service offered by the South Carolina Bar. It offers a referral to a licensed South Carolina attorney in your location who practices the type of law you request. All attorneys who participate in this service are in good standing with the South Carolina Bar and must maintain malpractice insurance. These attorneys have also agreed to charge no more than $50 for the first 30-minute consultation. After the first 30 minutes, their regular fees may apply. For more information, see http://www.scbar.org/PublicServices/FindaLawyer.aspx.

South Carolina Department of Social Services Adult Protective Services – This state agency is charged with protecting the health and welfare of elderly and disabled adults when there are allegations of abuse and neglect. For more information, see https://dss.sc.gov/content/customers/protection/aps/index.aspx.

Protection and Advocacy for People with Disabilities, Inc. (P&A) – P&A is authorized by state and federal law to protect the rights of individuals with disabilities. P&A provides free legal advocacy for individuals with a disability who have been discriminated against because of their disability or denied a service to which they are entitled. For more information, see http://pandasc.org/.

South Carolina Legal Services – South Carolina Legal Services provides legal representation in civil matters to low-income South Carolinians who meet eligibility requirements. For more information, see http://sclegal.org/ and http://lawhelp.org/sc/.

Community-based services – In the community, various state and local agencies provide services for persons with disabilities, such as homemaker services, respite care, residential care, self-directed care for veterans, and adult foster care homes. Sometimes these services are available through Medicaid. For more information, see http://www.scbar.org/LinkClick.aspx?fileticket=QL4xW3AqA8Q%3d&tabid=204.

Community Long Term Care (CLTC) – For individuals who qualify for Medicaid, the CLTC office can connect them to services for long term care, including services to help them live in the community or in facility-based nursing care. For more information, see https://www.scdhhs.gov/provider-type/cltc-provider-manual-020105-edition-posted1142005.

Law Enforcement – Abuse, neglect, and exploitation of vulnerable adults are crimes and should be reported to local law enforcement.

However, if the vulnerable adult resides in a South Carolina Department of Mental Health or South Carolina Department of Disabilities and Special Needs facility, report the abuse, neglect, or exploitation directly to South Carolina State Law Enforcement Division's (SLED's) Vulnerable Adult Investigative Unit. For more information, see http://www.sled.sc.gov/Vulnerable.aspx?MenuID=VulAdult.

Some local law enforcement may conduct wellness checks of vulnerable adults who live in the community. Contact your city or county law enforcement office for more information.

What is a durable power of attorney?

A durable power of attorney (DPOA) is a document that authorizes a person or persons to act or make decisions for another person. Durable means that the DPOA continues to be effective even if the person who signed the DPOA becomes incapacitated. Depending upon what the document says, the person who is authorized to act may make decisions about money, property, business, health care, residence, or other matters. See S.C. Code Ann. § 62-5-501 at http://www.scstatehouse.gov/code/t62c005.php.

The person identified in the DPOA to act and make decisions is called an agent. Only a very trustworthy person should be named as an agent. See S.C. Code Ann. § 62-5-504(1) at http://www.scstatehouse.gov/code/t62c005.php.

It is strongly recommended that you have a licensed South Carolina attorney prepare a DPOA for you. Only an attorney can fully explain the risks and benefits of a DPOA and make sure that it is valid in South Carolina.

If I have named someone as an agent in a valid DPOA, do I need a guardianship?

It depends upon several factors:

What you need;

What the DPOA document allows your agent to do;

Whether the agent is meeting your needs.

If you have questions, please contact an attorney.

What is the difference between a DPOA and a health care power of attorney?

The DPOA may apply to many different types of decisions, not just health care. A health care power of attorney (HCPOA) applies only to health care decisions.

Where can I get a health care power of attorney (HCPOA)?

A free sample HCPOA is found in S.C. Code Ann. § 62-5-504 http://www.scstatehouse.gov/code/t62c005.php. See also
http://aging.sc.gov/SiteCollectionDocuments/S/SCHealthCarePowerOfAttorney.pdf (internal note - when these are translated into Spanish, there is a separate link to the Spanish form.)

You can obtain a HCPOA that is tailored to your needs from an attorney.

What is a living will?

A living will only addresses end of life issues. A HCPOA allows a person to make decisions for you if you are not able to consent, regardless of whether your condition is terminal.

The best time to make a health care directive or a living will is when you are in good health and can think clearly about the decision. If you wait until after you are hospitalized or living in a facility, there are additional requirements to create the document. For more information, see http://aging.sc.gov/legal/Pages/LivingWillAndPowerOfAttorney.aspx.

In South Carolina, a living will is also known as a Declaration of Desire for a Natural Death. This document must be signed before two witnesses and a Notary Public. For more information, see http://aging.sc.gov/SiteCollectionDocuments/S/SCLivingWill2000.pdf.

Note: A living will is not the same as a Last Will and Testament. A living will does not direct how property is distributed.

What is the difference between a health care power of attorney (HCPOA) and a living will?

A HCPOA is a document that allows you to name another person to make health care decisions anytime you are unable to do so. A living will is a very limited document that only declares what medical treatment you want or do not want if you are about to die. The HCPOA may also include more specific directions about the medical treatment you want or do not want if you are about to die. For more information, visit the website of the South Carolina Lt. Governor's Office on Aging at http://aging.sc.gov/SiteCollectionDocuments/S/SCHealthCarePowerOfAttorney.pdf.

What is a will?

A will is also known as a Last Will and Testament. A will is a document that only takes effect after you die and specifies how you want to distribute your property and money, among other things.

If you have questions, please contact an attorney.

What is the difference between a living will and a will?

These are two different documents with different purposes. A living will is a document that declares what medical treatment you want or do not want to receive if you are about to die. A will is a document that only takes effect after you die and specifies how you want to distribute your property and money, among other things.

What are least restrictive alternatives for decision making?

Least restrictive alternatives are options that encourage independence and allow you to make decisions about your care and well-being while still providing protection for you. People who can protect themselves should retain their rights. If least restrictive alternatives can sufficiently protect you, they may be used instead of guardianship.

Resources

If you do not understand the information in these Frequently Asked Questions, you may want to contact an attorney.

To find an attorney who practices law in this area, please contact the South Carolina Bar's Lawyer Referral Service (LRS) at 1-800-868-2284 (toll free) or 803-799-7100 (Columbia area). LRS offers a referral by the location and by type of law. The lawyers who sign up with LRS are in good standing with the South Carolina Bar and must maintain malpractice insurance coverage. The lawyers also agree to a 30-minute consultation for no more than $50. After the 30-minute consultation, the fees will be the lawyers' normal fees. Once you receive a referral, you will be expected to contact the lawyer by telephone to make an appointment.

If you cannot afford an attorney, you may contact the South Carolina Legal Aid Telephone Intake Service (LATIS) at 1-888-346-5592 (toll free) or 803-744-9430 (Columbia area). Eligibility for assistance will depend on your income and assets and the type of problem you have. The income limit to be eligible for LATIS is 125% of the Federal poverty level, which changes every year in April. There is also an asset (money in bank accounts, property, etc.) limit. Additionally, the problem you have must be within the list of problems with which South Carolina Legal Services can help.

These Frequently Asked Questions were developed through a grant from the United States Department of Health and Human Services Administration on Aging administered by the South Carolina Lieutenant Governor's Office on Aging.

Guardianship in South Carolina
Frequently Asked Questions from a Caregiver or Potential Guardian

In some situations, guardianship may be the best choice to protect a person and that person's rights if the person is incapacitated. This may be a full guardianship or a limited guardianship. Because guardianship can be very restrictive for an individual, it is important to explore other alternatives first.

What is an incapacitated person?

In South Carolina, an incapacitated person is someone who is impaired due to mental illness, developmental disability, physical illness or disability, advanced age, chronic use of drugs or alcohol, or other causes. Just because an individual makes bad decisions or has a disability does not necessarily mean that he or she is an incapacitated person. See S.C. Code Ann. § 62-5-101 at http://scstatehouse.gov/code/t62c005.php.

What is the difference between incapacity and poor judgment?

An incapacitated person is unable to make responsible decisions about his or her well-being. A person with poor judgment has the ability to make responsible decisions, but chooses not to do so. Sometimes it may be difficult to understand the reasons for the poor decisions, which is why the Probate Court relies on the opinions of medical examiners.

What is a ward?

A ward is a person to be protected by a guardian. A guardian is only appointed when a Probate Judge determines a person is an incapacitated adult who does not have the mental or physical capacity to effectively manage or make necessary daily living and health care decisions.

What is a guardian?

In South Carolina, a guardian is a person, institution, or agency appointed by the Probate Court to handle personal matters for a ward.

The primary responsibilities of a guardian are to decide where the ward will live and make provisions for the ward's care, comfort, and maintenance, including medical and health care decisions. Among other responsibilities, a court-appointed guardian must file a written report with the Probate Court at least once a year.

What is a guardian ad litem?

A guardian ad litem (GAL) and a guardian are not the same thing.

A GAL is:

An independent third-party attorney appointed by the Probate Court;

Authorized to investigate the case for the Probate Court; and

Required to report to the Probate Court.

What is the difference between a guardian and a GAL?

A guardian is a person, institution, or agency appointed by the Probate Court to handle personal matters for a ward. Usually the guardian serves until the ward dies or the Probate Court decides that the ward no longer needs a guardian.

The GAL is also appointed by the Probate Court, but only until the case is resolved.

What is a guardianship proceeding?

In South Carolina, a guardianship proceeding is the process in Probate Court (http://www.sccourts.org/probateCourt/) that appoints a guardian to make decisions for an incapacitated person, such as medical decisions, decisions about where to live, and other decisions for the person. The person who has been appointed by the Probate Court to make decisions for an incapacitated person is called a guardian. An adult who has been found incapacitated by the Probate Court is known as a ward.

Once appointed by the Probate Court, the guardian is authorized to make certain important decisions for the ward.

In South Carolina, a guardianship involves personal decisions and not decisions about money, real estate, or valuable property. The Probate Court may appoint a conservator to protect money and property. These FAQs do not cover conservatorships.

Does the Probate Court handle guardianships for minors?

No, only the Family Court can appoint a guardian for a minor. A minor is an individual under the age of 18. Only the Probate Court can appoint a guardian for an adult.

What are the requirements for appointing a guardian?

Only the Probate Court can appoint a guardian for an adult. The Probate Court will not appoint a guardian unless it receives clear and convincing evidence, in a court hearing, that an individual is incapacitated and that the person applying to be guardian is the appropriate person to serve as a guardian.

Some of the basic requirements are:

The person filing the Guardianship Petition must complete a summons (http://www.sccourts.org/forms/pdf/SCCA401PC.pdf) and petition (http://www.sccourts.org/forms/pdf/530PC.pdf) and serve both the summons and petition. To learn how to serve these documents, see http://www.sccourts.org/selfHelp/FAQCircuit.pdf#page=2;

$150 filing fee must be paid to the court;

Two examiners, including one physician, must be appointed by the Probate Court and must examine the individual and find that the individual is incapacitated. See http://www.sccourts.org/forms/pdf/541PC.pdf and http://www.sccourts.org/forms/pdf/538PC.pdf;

The Probate Court must appoint a visitor. A visitor meets with the individual alleged to be incapacitated to make sure the environment is safe and to find out more information about him or her;

The Probate Court must appoint an attorney with the duties of a guardian ad litem (GAL);

A person alleged to be incapacitated has a right to be represented by an attorney. The attorney does not have to be the same person as the GAL;

Notice must be provided to the alleged incapacitated person, his or her spouse, parents, and adult children. If a person alleged to be incapacitated already has a guardian or has a power of attorney, the guardian or person named in the power of attorney must be notified. If none of these persons can be found, at least one of the alleged incapacitated person's nearest relatives must be notified. See S.C. Code Ann. § 62-1-201(20) at http://scstatehouse.gov/code/t62c001.php;

The Probate Court must hold a hearing. See S.C. Code Ann. § 62-5-303 at http://www.scstatehouse.gov/code/t62c005.php;

At the hearing, the alleged incapacitated person has the right to speak to the Probate Court Judge and to be represented by an attorney.

Check with the Probate Court about further requirements and fees.

What is a visitor?

A visitor is a person who is appointed by the Probate Court to give a written opinion about whether the visitor believes the alleged ward/vulnerable adult needs a guardian. See S.C. Code Ann. §§ 62-5-307 and 62-5-308 at http://www.scstatehouse.gov/code/t62c005.php.

Who may need a guardian?

An adult who is unable to make reasoned health care decisions or take or direct proper care of himself or herself.

An adult who does not have a health care power of attorney (HCPOA) and needs someone to make health care decisions.

An adult who is dying and does not have a living will or a HCPOA, and whose family cannot agree as to appropriate end of life decisions.

An adult who has a living will or HCPOA, but the person named in the document is unable or unwilling to make decisions or has a conflict.

An adult who has a living will or HCPOA, but the documents are not sufficient to meet his or her needs or the adult will not let the agent designated in the living will or HCPOA help.

An adult whose health care providers (nursing homes, doctors, hospitals) are not honoring a valid Durable Power of Attorney (DPOA) or HCPOA.

An adult who needs services in the home and is unable to arrange for them on his or her own.

An adult who is in a facility and needs an advocate to make sure his or her needs are met.

Who does not need a guardianship in Probate Court?

A person who is a minor (under 18 years of age). The Family Court has jurisdiction over minors.

An adult who is not incapacitated. Making poor decisions does not necessarily mean a person needs a guardian. See S.C. Code Ann. § 62-5-101(1) at http://scstatehouse.gov/code/t62c005.php.

An adult who has a valid living will, healthcare power of attorney, or durable power of attorney that is sufficient to meet his or her needs.

An adult whose needs are met by the Adult Health Care Consent Act. See S.C. Code Ann. §§ 44-66-10 et seq. at http://www.scstatehouse.gov/code/t44c066.php.

A ward who already has a guardian in another jurisdiction. There may be a need to transfer the Guardianship to South Carolina if the ward is residing in South Carolina.

An adult who can manage personal care decisions, but not financial decisions. That person may need a protective order or conservator to manage money or property.

Are there any alternatives to guardianship?

Yes. There are several options that are less restrictive than full guardianship. These options are outlined in Alternatives to Guardianship in South Carolina - Frequently Asked Questions.

What are Least Restrictive Alternatives for decision making?

Least restrictive alternatives are options that encourage independence and allow a person to make decisions about his or her care and well-being while still providing protection for the person. People who can protect themselves should retain their rights to the extent possible.

Who has priority to be a guardian?

In South Carolina, the Probate Court makes the final decision as to who will be the guardian based on the facts of each case. There is a priority for appointment by law, which is followed unless there is a good reason to appoint someone else. See S.C. Code Ann. § 62-5-311 at http://www.scstatehouse.gov/code/t62c005.php. Form 530PC, Petition for Guardian, is found online at http://www.sccourts.org/forms/pdf/530PC.pdf.

The priority is:

A person nominated to serve as guardian by the alleged incapacitated person;

A person appointed in a power of attorney by the alleged incapacitated person pursuant to Section 62-5-501;

The spouse of the alleged incapacitated person;

An adult child of the alleged incapacitated person;

A parent of the alleged incapacitated person, including a person nominated by will or other writing signed by a deceased parent;

Another relative of the alleged incapacitated person;

Someone nominated by the person who is caring for the incapacitated person or the person/entity paying benefits to the incapacitated person.

Even if you have priority, do you qualify to be a guardian?

Not always. In certain circumstances, the law allows the Probate Court to make a decision that is outside the order of priority for the best interest of the ward. A guardian must be qualified and suitable as determined by the Probate Court.

Maybe you should not be a guardian if:

You do not have the time.

You do not live in South Carolina.

You do not have the resources to commit to serving.

You are not emotionally ready.

You are too close to the situation.

Someone else may be more appropriate.

You have been convicted of a felony.

You are under 18 years of age.

You are on the adult abuse registry.

You are on a sexual offender or sexual predator registry in any state.

You have a mental or physical health care concern of your own that would prevent you from serving.

You are uncomfortable making decisions that may conflict with other family members' choices.

You do not like confrontation.

You may not be able to honor the ward's wishes.

You are only doing it because you feel guilty.

You do not have a strong connection to or care for the person.

You have a conflict of interest; what you want may be different than the best interest of the individual. (Example: You have a personal or financial interest that may complicate the decision.)

Who is the ideal choice for a guardian?

The ideal choice for a guardian is going to depend greatly upon the specific circumstances of the individual who needs a guardian. The ideal candidate must be willing to do the work and report back to the Probate Court. The person appointed as guardian must be willing to follow the rules of court and the law.

Qualities may include being:

loving

respectful

responsible

diligent

easily accessible and responsive

available

open-minded

organized

good at record-keeping

willing to speak up

assertive

dutiful

honest

sensitive

discerning

tactful

patient

kind

compassionate.

Do I have to be the guardian for my family member or friend?

No. Serving as a guardian is voluntary.

If I do not want to be a guardian, are there any other options?

Yes. Other family members, friends, professional guardians, agencies, or others may be willing to serve as a guardian. See S.C. Code Ann. § 62-5-311 at http://www.scstatehouse.gov/code/t62c005.php.

Does South Carolina have a public guardian program?

No.

If no one in my family can serve as guardian, are there professional guardians?

There are individuals and organizations that serve as professional guardians, but these services are usually not free. You may want to compare the services and prices.

Contact the Probate Court in the county where the allegedly incapacitated person resides.

Check with doctors, counselors, therapists, or any agency which provides services to your loved one.

Check with an agency, including the:

South Carolina Lieutenant Governor's Office on Aging

South Carolina Department of Social Services

Veterans Administration

South Carolina Department of Mental Health

South Carolina Department of Disabilities and Special Needs

South Carolina Department of Health and Human Services.

Can two people be guardians for the same person?

Yes, but usually only one person is appointed to serve as a guardian.

Two people can be guardians in special situations. In order for the situation to work best for the ward, the two guardians must get along and they must be willing to work together on all decisions.

Co-guardians are most often appointed when they are the parents of an incapacitated adult, or in cases where there are adult children of an incapacitated parent and one may live close to the parent and the other may live out of town or out of state.

What do I have to do if I am a guardian?

Act in the ward's best interest;

Report to the Probate Court as instructed;

Stay informed of the ward's conditions (appointments, services, etc.);

Visit the ward regularly based upon the needs of the ward or upon order of the Probate Court;

Make sure the ward has appropriate food, shelter, clothing, and health care; and

Consider the needs and wants of the ward in making decisions that are in his or her best interest.

What are the powers and duties of the guardian?

Generally a guardian has the same powers, rights, and duties over the ward that a parent has over a child. See S.C. Code Ann. § 62‑5‑312 at http://www.scstatehouse.gov/code/t62c005.php.

A guardian must:

File an annual report with the Probate Court;

Inform the Probate Court of the physical location of the ward; and

Keep the guardian's contact information current with the Probate Court.

When the Probate Court appoints a guardian for a ward, the guardian may have some or all of the following responsibilities:

Advocate in the ward's best interest.

Determine and monitor the ward's residence.

Monitor whether the ward's needs are being met.

Monitor health care and non-medical services, such as education and counseling.

Consent to or refuse to consent to health care.

Consent to or refuse to consent to non-medical services such as education and counseling.

Consent to or refuse to consent to the release of confidential information.

Make end-of-life decisions.

Encourage independence and advocate for the ward to live in the least restrictive setting appropriate to his or her needs.

Report to the Probate Court about the guardianship status at least annually.

What happens if I later decide I no longer want to be a guardian?

It is important for you to know that you must remain a guardian until the Probate Court relieves you. You will still be responsible for acting in the best interest of the ward and reporting to the Probate Court until the Probate Court relieves you. You must file a request with the Probate Court to relinquish your responsibilities as the guardian. See South Carolina Code Ann. § 62-5-307 at http://www.scstatehouse.gov/code/t62c005.php.

What are my options if I am not the guardian?

Any interested person can file an action to remove an existing guardian and petition the Probate Court to review his or her administration. SCCA Form 571PC is found online at http://www.sccourts.org/forms/pdf/571PC.pdf.

What if someone is abusing my ward?

Call local law enforcement (911) in emergency situations.

Have your Probate Court appointment papers available to show you have authority to act for your ward.

Get copies of any relevant reports, medical information, photographs, or other documents.

Keep a record of the date and time and details of any incidents.

Determine whether you need to contact Adult Protective Services (DSS), the Long Term Care Ombudsman, SLED, or law enforcement. For more information, see http://pandasc.org/wp-content/uploads/2011/12/SpotAbuse.pdf.

When is an emergency guardianship necessary?

An emergency guardianship is necessary if immediate action needs to be taken to protect the health, safety, or welfare of a person. See S.C. Code Ann. § 62-5-310 at http://www.scstatehouse.gov/code/t62c005.php.

How do I know if someone has a guardian?

An adult does not have a guardian unless there is an official document signed by the Probate Court Judge that appoints a guardian. Check with the Probate Court in the county where the person lives or formerly lived.

Once I am appointed as guardian, where should I send copies of my certificate of appointment?

Although not required, it is a good idea to send copies of the certificate of appointment to:

The ward's primary care physician and any of the ward's other physicians.

The ward's other medical service providers (for example: Medicaid, any care providers, nursing homes, facility directors).

Credit bureaus such as Equifax, Experian, or TransUnion. (http://www.equifax.com/, http://www.experian.com/, http://www.transunion.com/)

The ward's banks.

Can I ask that the guardianship action be kept private or sealed?

Yes. You can make a formal request to the Probate Court.

Does a guardian need to be bonded?

In Probate Court, a bond is a type of insurance to protect assets of the ward. Bonds are usually not required in guardianships, but they are required in Conservatorships.

What does it cost to be appointed as a guardian?

Costs can vary. The court's filing fee is $150. There are other expenses, which may include the cost of the visitor, the guardian ad litem (GAL), the examiners' reports, attorney's fees, and service of process. There may be other costs as well. See S.C. Code Ann. § 62-5-414 and § 62-5-711 at http://www.scstatehouse.gov/code/t62c005.php

Do I get paid as a guardian?

It depends. Ask the Probate Court. You may request a fee, but the Probate Court will make the decision about any fee or reimbursements.

Does the guardian have to pay for the ward's food, housing, and other incidentals?

The guardian must always act in the ward's best interest. Acting in the ward's best interest may mean that the guardian must use the ward's income to purchase food, housing, or other items for the ward.

In some cases, the guardian may need to use his or her own funds for the ward if there is an emergency need or necessities are required to protect the ward. If the guardian does use his or her own funds, he or she can ask the court for reimbursement.

A guardian may never spend the ward's money for the guardian's personal use.

Can the guardian be reimbursed for expenses?

Often the guardian can be reimbursed for legitimate expenses if the ward has sufficient funds. Check with the Probate Court about its reimbursement process.

Who has to pay for the cost of securing guardianship?

If a guardian is appointed, the costs may be paid from the ward's funds or estate if there are any assets available. See S.C. Code Ann. § 62-5-312(b) at http://www.scstatehouse.gov/code/t62c005.php.

The Probate Court decides whether the person who brings the guardianship petition is reimbursed for the attorney's fees and expenses.

It is possible that the Probate Court will not find a guardian necessary, and the person bringing the action may be responsible for all of the expenses.

Do I need to be trained to be a guardian?

Some probate courts require training. Check with the Probate Court in the county where the potential ward lives. See http://www.sccourts.org/probateCourt/probateMap.cfm.

Can I take a break from being a guardian?

The Probate Court allows a guardian to delegate some or all of the guardian's powers to another person for up to thirty days. Ask the Probate Court for the specifics. See S.C. Code Ann. § 62-5-104 at http://www.scstatehouse.gov/code/t62c005.php.

Is there a handbook where I can get more information?

While there is free information about guardianships online, it may not be specific to South Carolina. For general reference, visit these links:

http://www.guardianship.org/reports/Guardianship_Report.pdf

There is a book on Elder Law, written by Franchelle Millender, a South Carolina attorney, for attorneys. You can buy the book from the South Carolina Bar at http://miva.scbar.org/merchant5/merchant.mvc?Screen=CTGY&Store_Code=scbcle&Category_Code=ELDER.

What liability do I have as a guardian?

It depends. Usually a guardian is not responsible for the ward's acts. A guardian has a duty to act in the best interest of the ward at all times. See S.C. Code Ann. § 62‑5‑312 at http://www.scstatehouse.gov/code/t62c005.php.

If you have questions about your liability as a guardian, please contact an attorney.

What does "best interest" mean?

"Best interest" means a decision that will have the best outcome for the ward.

This means that a guardian must evaluate all of the options available. A guardian must remember to take into consideration the ward's value system, religious beliefs, wants, needs, and desires when he or she makes decisions.

How do I apply to become a guardian?

This is an involved process. The first thing to do is talk to the Probate Court. There are forms and fees that are required. See S.C. Code Ann. § 62-5-303 at http://www.scstatehouse.gov/code/t62c005.php.

If possible, talk to an attorney. An attorney can guide you through this process. If you cannot afford an attorney, below are some of the steps to become a guardian:

Talk to the Probate Court Staff and tell them what you are trying to do.

Get the appropriate forms – Summons and Petition. Go to http://www.sccourts.org/forms/ for Probate Court Forms.

Fill out the forms accurately.

Take the forms to the Probate Court to file. Pay the required fees. Get a copy of the forms that you filed.

Request that the Probate Court appoint a visitor.

Request that the Probate Court appoint a guardian ad litem.

Ask the Probate Court to appoint two examiners, one of whom must be a physician. Sometimes the Court will select the examiners. This varies by county. The examiners will fill out written reports. Make sure the reports are filed with the Probate Court.

Serve all the appropriate people with copies of the documents that you filed with the Probate Court. See http://www.sccourts.org/probateCourt/probateMap.cfm. For more information about how to "serve" documents, see http://www.sccourts.org/selfHelp/FAQCircuit.pdf#page=2.

Note: If an interested person notifies the Probate Court that he or she objects, the procedure becomes more complicated. If an interested person objects, you are strongly encouraged to contact an attorney.

File the proof of service form with the Probate Court. See http://www.sccourts.org/probateCourt/probateMap.cfm.

Request a hearing date from the Probate Court.

After you get a hearing date, provide notice of the hearing to all the parties, including the potential ward and the guardian ad litem.

Before the hearing, make sure that all the appropriate forms have been filed, including the visitor's report and the two examiners' reports.

Make sure the guardian ad litem is ready to report to the Probate Court.

Some Probate Courts have additional requirements. Check with the Probate Court.

At least one week prior to the hearing date, check with the Probate Court to ensure that everything is ready for the hearing.

Note: The potential ward is entitled to be present at the hearing and is entitled to an attorney. The guardian ad litem may be allowed to waive the potential ward's right to attend if appearing in court would not be in the potential ward's best interest. See S.C. Code Ann. § 62-5-309 at http://www.scstatehouse.gov/code/t62c005.php.

Do I need an attorney?

An attorney is not required, but this is a complicated process, and you are encouraged to contact an attorney.

Can the guardian change the ward's will?

No.

What does the guardian do if the ward is no longer incapacitated?

The ward or any interested person may request that the Probate Court issue an order finding that the ward is no longer incapacitated and ending the guardianship. See S.C. Code Ann. §§ 62-5-306 and 62-5-307 at http://www.scstatehouse.gov/code/t62c005.php.

Any interested person may make a request to the Probate Court by informal letter. The Probate Court must appoint a visitor to meet with the guardian and the ward. The visitor must send the Probate Court a report before the Court can act on any such request. The Probate Court will need updated medical information in order to decide whether the ward still meets the definition of incapacity. Many Probate Courts require a hearing as well. For more information, contact the Probate Court. See S.C. Code Ann. § 62-5-307 at http://www.scstatehouse.gov/code/t62c005.php

What should I do if my Ward dies?

Notify the Probate Court immediately. The guardian must file a Petition for Discharge (PC 571) and proof of death of the ward. The Probate Court will issue an Order of Discharge. http://www.sccourts.org/forms/pdf/571PC.pdf

If you have additional questions, ask the Probate Court.

Resources

If you do not understand the information in these FAQs, you may want to contact an attorney.

To find an attorney who practices law in this area, please contact the South Carolina Bar's Lawyer Referral Service (LRS) at 1-800-868-2284 (toll free) or 803-799-7100 (Columbia area). LRS offers a referral by the location and by type of law. The lawyers who sign up with LRS are in good standing with the South Carolina Bar and must maintain malpractice insurance coverage. The lawyers also agree to a 30-minute consultation for no more than $50. After the 30-minute consultation, the fees will be the lawyers' normal fees. Once you receive a referral, you will be expected to contact the lawyer by telephone to make an appointment.

If you cannot afford an attorney, you may contact the South Carolina Legal Aid Telephone Intake Service (LATIS) at 1-888-346-5592 (toll free) or 803-744-9430 (Columbia area). Eligibility for assistance will depend on your income and assets and the type of problem you have. The income limit to be eligible for LATIS is 125% of the Federal poverty level, which changes every year in April. There is also an asset (money in bank accounts, property, etc.) limit. Additionally, the problem you have must be within the list of problems with which South Carolina Legal Services can help.

Guardianship in South Carolina
Frequently Asked Questions from a Ward

WARNING: You are strongly encouraged to seek the advice of an attorney in any legal matter. If you move forward without an attorney, it may negatively affect your legal rights. If you have questions about your legal rights or the law that affects your case, please talk with an attorney.

DISCLAIMER: The general information provided in these Frequently Asked Questions (FAQs) is not legal advice, cannot be cited as legal authority, and cannot replace the advice of an attorney licensed in South Carolina. The information in these FAQs is accurate as of the date of publication. If you decide to bring a lawsuit in a South Carolina court without an attorney, you are responsible for researching the law on your own. Please note that the presiding judge in each case decides what law applies in that case.

Questions that a ward/vulnerable adult would ask:

What is an incapacitated person?

In South Carolina, an incapacitated person is someone who is impaired due to mental illness, developmental disability, physical illness or disability, advanced age, chronic use of drugs or alcohol, or other causes. Just because an individual makes bad decisions or has a disability does not necessarily mean that he or she is an incapacitated person. See S.C. Code Ann. § 62-5-101 at http://scstatehouse.gov/code/t62c005.php.

What is a visitor?

A visitor is a person who is appointed by the Probate Court to meet with the individual alleged to be incapacitated to make sure that the environment is safe and to find out more information about the individual. See S.C. Code Ann. §§ 62-5-303 and 62-5-308 at http://www.scstatehouse.gov/code/t62c005.php.

Who can be a visitor?

In South Carolina, a visitor must:

Have training in law, nursing, or social work;
Be appointed by the Probate Court; and
Have no personal interest in the court proceeding.

See S.C. Code Ann. § 62-5-308, http://www.scstatehouse.gov/code/t62c005.php.

What is a guardian ad litem in Probate Court?

A guardian ad litem (GAL) and a guardian are not the same thing.

A GAL is:

An independent third-party attorney appointed by the Probate Court;

Authorized to investigate the case for the Probate Court; and

Required to report to the Probate Court.

What If I do not want a guardian?

Talk to the visitor, the guardian ad litem, and your attorney, if you have one. If you do not have an attorney, ask the Probate Court to appoint an attorney who is not your guardian ad litem.

Ask the Probate Court to appoint a third examiner, perhaps your personal physician who has knowledge of your needs, in addition to the two examiners required by law.

Speak up at the guardianship hearing.

Note: The costs of the visitor, the guardian ad litem, and the attorney may be charged to you, the potential ward.

What are least restrictive alternatives for decision making?

Least restrictive alternatives are options that encourage independence and allow you to make decisions about your care and well-being while still providing protection for you. People who can protect themselves should retain their rights. If least restrictive alternatives can sufficiently protect you, they may be used instead of guardianship.

What is the process for appointing a guardian?

Only the Probate Court can appoint a guardian for an adult. The Probate Court will not appoint a guardian unless it receives clear and convincing evidence, in a court hearing, that an individual is incapacitated, and that the person applying to be guardian is the appropriate person to serve as a guardian.

Some of the basic requirements are:

The person filing the guardianship petition must complete a summons (http://www.sccourts.org/forms/pdf/SCCA401PC.pdf) and petition (http://www.sccourts.org/forms/pdf/530PC.pdf) and serve both the summons and petition. To learn how to serve these documents, see http://www.sccourts.org/selfHelp/FAQCircuit.pdf#page=2.

$150 filing fee must be paid to the Probate Court.

Two examiners, including one physician, must be appointed by the Probate Court and must examine the individual and find that the individual is incapacitated. The Examiner's Report is found online at http://www.sccourts.org/forms/pdf/538PC.pdf. The Doctor's Affidavit Regarding Capacity is found online at http://www.sccourts.org/forms/pdf/541PC.pdf.

The Probate Court must appoint a visitor. A visitor meets with the individual alleged to be incapacitated to make sure the environment is safe and to find out more information about him or her.

The Probate Court must appoint an attorney with the powers and duties of a guardian ad litem (GAL).

A person alleged to be incapacitated has a right to be represented by an attorney, but the attorney may not be the same person as the GAL.

Notice must be provided to the alleged incapacitated person, his or her spouse, parents, and adult children. If a person alleged to be incapacitated already has a guardian or has a power of attorney, the guardian or person named in the power of attorney must be notified. If none of these persons can be found, at least one of the alleged incapacitated person's nearest relatives must be notified. See S.C. Code Ann. § 62-1-201(20) at http://scstatehouse.gov/code/t62c001.php.

The Probate Court must hold a hearing. See S.C. Code Ann. § 62-5-303 at http://www.scstatehouse.gov/code/t62c005.php.

At the hearing, the alleged incapacitated person has the right to speak to the Probate Court Judge and to be represented by an attorney.

Check with the Probate Court in the county in which the action will be filed to obtain information about additional requirements and fees.

What is the difference between incapacity and poor judgment?

A person with incapacity is unable to make responsible decisions about his or her well-being. A person with poor judgment has the ability to make responsible decisions, but chooses not to do so. Sometimes it may be difficult to understand the reasons for the poor decisions, which is why the court relies on the opinions of medical examiners.

How long will I have a guardian?

You will have a guardian until the Probate Court decides you no longer need a guardian. Check with the Probate Court about requirements.

What if I believe I no longer need a guardian? What if I want a different guardian?

You or any interested person may request that the Probate Court issue an order stating that you are no longer incapacitated and ending the guardianship. See S.C. Code Ann. § 62-5-307 at http://www.scstatehouse.gov/code/t62c005.php.

Any interested person may make a request to the Probate Court by informal letter. The Probate Court must appoint a visitor to meet with the guardian and the ward. The visitor must send the Probate Court a report before the Court can act on any such request. The Probate Court will need updated medical information in order to decide whether you still meet the definition of incapacity. Many Probate Courts require a hearing as well. For more information, contact the Probate Court. See S.C. Code Ann. § 62-5-307 at http://www.scstatehouse.gov/code/t62c005.php

Do I have to do what my guardian says?

Yes, usually, you have to do as your guardian says. Your guardian has a duty to make decisions for you that are in your best interest.

After the guardianship hearing, the Probate Court will issue an order, sometimes also known as guardianship papers.

The guardianship papers describe the type of guardianship that is in place. In some instances, this may be a limited guardianship which will allow you, the ward, to make some decisions.

What is a limited guardianship?

A limited guardianship allows you to keep certain rights and independence. The Court must consider less restrictive alternatives and appoint a guardian only where necessary to protect you. The guardianship papers will tell you whether it is a limited guardianship.

Can my guardian spend my money?

Generally no.

If there is no conservator, no Veterans Administration fiduciary, and no Social Security representative payee appointed for the ward, then the guardian may be able to spend the ward's money. These are special cases, and the Probate Court should be able to guide your guardian through these situations.

A guardian makes decisions about where the ward will live and makes provisions for the ward's care, comfort, and maintenance, including health care and mental health care decisions. The guardian may need to spend money to pay for living arrangements or services for the ward. The Probate Court will supervise the way any of your money is spent.

Does my guardian control my property and money?

Generally no, but there are some exceptions. If you have a conservator, the conservator is responsible for controlling property and money. For more information, contact your attorney or the Probate Court.

What happens to my Social Security? What happens to my retirement?

It depends on many things, but your Social Security and your retirement should always be used for your benefit. These questions can be discussed during the guardianship hearing.

Do I have to eat what my guardian tells me to eat?

Your guardian is responsible for making decisions that are in your best interest, including your health care. Sometimes health care includes your diet, what you eat, and what your doctor recommends.

Can I choose who I want to be my guardian?

Sometimes. The Probate Court appoints the guardian after holding a hearing. Before the hearing, you can let the visitor and your guardian ad litem know who you want to be your guardian. You need to let the Probate Court Judge know your preference at the guardianship hearing as well. The Probate Court is not required to appoint the person you prefer. Also, you may want to hire an attorney or ask the Probate Court to appoint one for you.

Who has priority to be my guardian?

In South Carolina, the Probate Court makes the final decision as to who will be the guardian based on the facts of each case. There is a priority for appointment by law, which is followed unless there is a good reason to appoint someone else. See S.C. Code Ann. § 62-5-311 at http://www.scstatehouse.gov/code/t62c005.php. Form 530PC, Petition for Guardian,is found online at http://www.sccourts.org/forms/pdf/530PC.pdf.

The priority is:

A person you nominated to serve as guardian;

A person you appointed in a power of attorney pursuant to Section 62-5-501;

Your spouse;

Your adult child;

Your parent, including a person nominated by will or other writing signed by your deceased parent;

Another relative;

A person nominated by your caregiver or a person/entity paying benefits to you.

How will a guardianship affect my will?

A guardianship does not affect an existing will.

Can my guardian change my estate plan?

No.

What Probate Court do I go to with questions about my guardianship?

Start with the Probate Court in the county where the guardianship began. If you have moved to a different county or state, the guardianship may have been transferred to the new place.

What happens if my guardian dies?

The Probate Court needs to be told that the guardian has died. Then the Probate Court will decide whether you need a new guardian.

Will I still be able to vote?

Yes, unless the guardianship papers ("the order") state that you cannot.

Will I be able to decide where I live?

Your guardian should consider where you want to live. Your guardian will make the final decision about where you will live. Look at your guardianship papers to see if there are specific details that may limit the guardian's decisions. Talk to your guardian about available choices. Your guardian may consider finances, location, your needs, access to medical providers, and other factors to decide where you live.

Can I stay at home?

That depends. Your guardian must act in your best interest and review your situation and resources to decide whether you can stay at home.

Will the Probate Court appoint an attorney if I can't afford one?

Maybe. If you think you want an attorney, call South Carolina Legal Services at 1-888-346-5592 (toll free). If you need help finding an attorney, talk to your guardian ad litem or call the Probate Court.

Can I choose my own doctor?

If you have a guardian, tell your guardian who you want to have as your doctor. The guardian has the responsibility to act in your best interest, which includes choosing your doctor.

Can I spend my own money?

It depends. You and your guardian should work together based on how much money you have.

Note: If you have a conservator, Veterans Administration fiduciary, or Social Security representative payee, then that person, not your guardian, will decide how your money is spent.

Can I visit my children or spouse?

It depends. You and your guardian will decide based on the situation. If you have a close and healthy relationship with someone, your guardian will usually assist with visits. In most cases, visits among family members are not a problem.

What happens if I disagree with my guardian?

If you are concerned about the actions or decisions of your guardian, first talk with your guardian directly about your concerns and try to work toward a resolution. You may want to speak with other people you trust to help you with the communication. Most issues are resolved through respectful communication.

What if we cannot come to an agreement?

Contact the county Probate Court with your concerns. The Probate Court may provide you with contact information for legal assistance. The Probate Court may re-involve the original court-appointed attorney, send out a visitor to further investigate, forward the concern to South Carolina Department of Social Services Adult Protective Services, simply file the complaint and address it later if more issues arise, or take other appropriate action.

What rights do I have?

You will always have a right to be treated with respect and to receive appropriate care. Other rights may be determined by the Probate Court and the type of guardianship you have. If you have a limited guardianship, the guardianship papers may describe some of those rights. You may have other protections under the law that are not affected by the guardianship.

Resources

If you do not understand the information in these FAQs, you may want to contact an attorney.

To find an attorney who practices law in this area, please contact the South Carolina Bar's Lawyer Referral Service (LRS) at 1-800-868-2284 (toll free) or 803-799-7100 (Columbia area). LRS offers a referral by the location and by type of law. The lawyers who sign up with LRS are in good standing with the South Carolina Bar and must maintain malpractice insurance coverage. The lawyers also agree to a 30-minute consultation for no more than $50. After the 30-minute consultation, the fees will be the lawyers' normal fees. Once you receive a referral, you will be expected to contact the lawyer by telephone to make an appointment.

If you cannot afford an attorney, you may contact the South Carolina Legal Aid Telephone Intake Service (LATIS) at 1-888-346-5592 (toll free) or 803-744-9430 (Columbia area). Eligibility for assistance will depend on your income and assets and the type of problem you have. The income limit to be eligible for LATIS is 125% of the Federal poverty level, which changes every year in April. There is also an asset (money in bank accounts, property, etc.) limit. Additionally, the problem you have must be within the list of problems with which LATIS can help.