A Guardianship is formed when someone is appointed by the SC probate court to make health care decisions (Guardian of the Person) while a Conservator is appointed to make financial decisions for an incapacitated individual (Conservator of the Estate). Often the same person is appointed to both positions. Prior to seeking either, you should consult with an estate attorney for advice on whether such an appointment is necessary or if there are other steps that are a better solution to your particular situation. In the case of a minor, a Conservator must be appointed by the probate court in certain cases where the minor is entitled to receive a sum of money from an insurance settlement or an inheritance for example.
In South Carolina, a Guardianship appointed by the probate court handles personal, health and residency decisions for an incapacitated adult. The incapacity may be due to mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs or alcohol, or other causes, except minority. A Guardian must decide where the person will live and make provisions for his/her care, comfort and maintenance, including mental and health care decisions. A court appointed Guardian must make yearly reports to the Probate Court regarding the condition of the incapacitated person.
Actions for the appointment of a Guardian for a minor are handled by the South Carolina Family Court rather than the probate court. However, if a trust, such as a special needs trust, is being established for the minor then the probate court has jurisdiction.
A Guardian for an incapacitated adult is appointed after a hearing where testimony, usually from family, a physician and a licensed social worker, indicate that the person is in need of a Guardian to assist in his or her personal care. All Guardians are required to review an educational video provided by the probate court.
Similar to the appointment of a Guardianship, a Conservator is appointed after a hearing in the probate court where various professionals indicate that the medical and social status of the incapacitated adult requires a Conservator.
A Conservator manages financial affairs and property for an incapacitated adult or for a minor. The Conservator has a fiduciary duty to the party and must manage and protect assets and pay all legitimate bills for their care and welfare. The conservator must report periodically to the court about the status of the party's assets, income and expenditures. No expenditures can occur without written Court order. If you do not properly handle the assets, you can be sued by the heirs and will be liable for any mismanagement or self dealing.CLICK HERE TO VIEW THE CONSERVATORSHIP VIDEO
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In re Campbell, 379 S.C. 593, 666 S.E.2d 908 (2008).
A daughter petitioned the probate court to be appointed conservator of her mother’s assets, alleging that her mother was no longer mentally capable handling her financial affairs. The probate court appointed two doctors, both of whom the mother had previously designated as expert witnesses, as examiners for the mother. The doctors found the mother to be competent, and the probate court denied the daughter's petition to be appointed as conservator. The circuit court reversed the probate court’s order, and the South Carolina Court of Appeals affirmed, finding that the Probate Code requires that doctors examining a person’s capacity to handle his or her own affairs must be “disinterested.” On appeal, the South Carolina Supreme Court held that it was error to read into the statute an overriding requirement that court-appointed examiners be disinterested. However, the court upheld the reversal of the probate court’s order on the grounds that the probate court abused its discretion by failing to appoint neutral and objective examiners.