The New Guardianship and Conservatorship Act in South Carolina

By Michael B. Bridges
Dobson, Jones, Ball, Phillips & Bridges, P.A.
Attorneys at Law

In South Carolina, a guardian is a person appointed by Probate Court to make personal decisions for an individual deemed by the Court to be incapacitated.   A conservator is a person appointed by the Probate Court to make financial decisions for an individual deemed by the Court to be incapacitated.    South Carolina law on guardianships  and conservatorships was recently changed. The new Guardianship and Conservatorship Act, Act Number 87 effective January 1, 2019, ushered in considerable changes to Article 5 of the South Carolina Probate Code.   This legislation went through an extensive deliberation and review process.  The goals for the process gave a broad view of the changes  from prior law and are as follows:

1. Simplify and clarify the process to promote uniformity throughout the state
2. Ensure adequate due process protections for the allege incapacitated individual
3. Increase the availability and practicality of limited guardianships
4. Reduce the cost of the process
5. Create consistency between conservatorships and guardianships
6. Establish a system for adequate monitoring of guardians and conservators

There are  extensive changes to the prior law and this article  will focus on the most significant changes.

One of the most significant changes is separating the role of the Guardian ad Litem (“GAL”) from the role of Counsel of the Alleged Incapacitated Individual (“AII”)  Under prior law, the attorney appointed by the probate court had the powers and duties of a Guardian ad Litem.  As GAL, the individual speaks in the best interest of the AII.  As, attorney, the individual advocates for the client’s desires even if not in the client’s best interests.  Therefore, the attorney wore two hats, one as attorney for his client and one as GAL for his client.  This conflict of interest has been eliminated.  Now the attorney appointed as counsel for the alleged incapacitated individual only serves as counsel.  He or she does not also serve as GAL.

There will continue to be an attorney appointed for the AII and also a GAL for the AII and these will now be two separate individuals.  Due to this change, the prior role of Visitor has been eliminated.  However, the GAL may be a person licensed in the state of South Carolina in law, social work , nursing, medicine or psychology or who has completed training to the satisfaction of the court, and who has been appointed by the court to advocate for the best interests of the individual.  Therefore, the GAL role may still be filled by a social worker.

Another important change is the definition of incapacity.   Incapacity now means the inability to 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: (a) meet the essential requirements for his physical health, safety, or self-care, necessitating the need for a guardian; or (b) manage his property or financial affairs or provide for his support or for the support of his legal dependents, necessitating the need for a protective order.   The Act clarifies that incapacity must be proved by clear and convincing evidence.

Note that the addition of the elements “support and assistance” to the definition ensures that if a less restrictive alternative is available the Court should not find the individual incapacitated.

The petition MUST enunciate the reasons why less restrictive alternatives are not available or appropriate.  The GAL MUST investigate whether or not less restrictive alternatives to a guardianship or protective order are available.

Under SC Code Section 62-5-105, the Petitioner is personally responsible for his or her own attorney’s fees and for costs and expenses of the action. The court may issue an order altering this, but neither the attorney nor the client should rely o this.

Other important changes:

1. Each person who desires to serve as Guardian or Conservator must file a petition.  A responsive pleading alone is not acceptable
2. Only one medical examiner is required and must be a physician.  Additional examiners may be used, and they may be a physician, nurse, social worker, or psychologist and may be appointed by the court’s own motion or upon the request of the initial examiner, AII or the GAL
3. The attorney for the AII may ask to be relieved, but only upon verifying that the AII is incapable of communicating with or without reasonable accommodation.  If so, the attorney may serve as GAL thus  potentially saving expenses.
4. The petitioner must enumerate the rights and powers that the he is requesting be removed, any restrictions to be placed on the AII and any restrictions sought to be imposed on the guardian or conservator.  In the Order, the rights removed from the AII must be specifically listed.  Rights are retained unless listed as being removed.
5. A plan of care will be required from a Guardian and a plan of care will be required from a Conservator.
6. Notice of Right to Counsel must be served upon AIII along with copy of Summons and petition

The Act provides temporary relief in emergency situations.  The Act now provides emergency temporary relief for conservatorship assets.

As one can see, the actions for both Guardianship and Conservatorship entail a detailed process and are not inexpensive.  One possible means of avoiding such actions for seniors is to make sure they have a health care power of attorney and a durable power of attorney, preferably drafted by an experienced elder law attorney.