Where can I find out more about what is necessary to establish a guardianship or conservatorship?
Please refer to the "Documents" section of our website. There, you may download the guardianship and conservatorship packets.
What is a guardianship or conservatorship?
In South Carolina a guardian handles personal and custodial matters for an incapacitated adult (the “ward”). 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 ward will live and make provisions for his/her care, comfort, and maintenance, including mental and health care decisions. A court-appointed guardian must report to the Probate Court annually or as otherwise directed by the Court regarding the condition of the ward. (Note: Guardians for minors are designated by the Family Court.)
A conservator manages financial affairs or property for an incapacitated adult (the "protected person") or for a minor. The conservator must manage and protect the property and report periodically to the Court about the assets, receipts, and disbursements of the estate. If you are appointed conservator by the Court, it will be your responsibility to dutifully handle the financial situation of the protected person as ordered by the Court. Most conservators must be bonded. A bond insures that the conservator carries out his duties faithfully and appropriately. The bond is based on the total value of the protected person's personal property (excluding real estate), plus estimated income
How do I know if I need to establish a guardianship or conservatorship?
If you know someone who, because of a mental illness, mental deficiency, physical illness, disability, advanced age, chronic use of drugs or alcohol, etc., can no longer manage his or her money or make decisions about personal or medical care, that person may need a court-appointed guardian or conservator. In the case of a minor, a conservator must be appointed in certain cases when the minor is entitled to receive a sum of money from an insurance settlement, inheritance, etc. You should speak to an attorney to discuss whether or not a guardianship or conservatorship may be needed.
How do I start, and how much does it cost?
The filing fee for a petition for guardianship or conservatorship is $150.00, unless the petitioner is found to be indigent. Additionally, a petitioner may be responsible for other costs of the action, including payments to examiners and the court- appointed guardian ad Litem, attorney for the incapacitated individual, and court-appointed examiner.
As the establishment of a guardianship or conservatorship is a legal matter, you should contact an attorney for advice and assistance. Lawyer's fees can vary depending on the circumstances and complexity of the case.
What is the general procedure?
Guardianship: Once you file a summons and petition and serve all respondents, the Court will appoint an attorney and guardian ad Litem for the alleged incapacitated person. The Court will also appoint an examiner (must be a physician) to complete an affidavit and report egarding the capacity of the alleged incapacitated individual. The Court then typically holds a hearing to determine whether and to what extent a guardianship is needed.
Conservatorship: Once you file a summons and petition and serve all respondents, the Court will appoint an attorney and guardian ad Litem for the alleged incapacitated person. The Court will also appoint an examiner (physician) to complete an affidavit and report regarding the capacity of the alleged incapacitated individual. The Court then typically holds a hearing to determine whether and to what extent a conservatorship is needed.
Please note, the guardianship and conservatorship appointment proceedings have several steps; generally the appointment of a guardian and/or conservator takes a minimum of sixty to ninety days.
When are guardianship or protective proceedings NOT necessary?
If a Health Care Power of Attorney exists, a guardianship may be avoided. (Please see the Documents section of this website for a free Health Care Power of Attorney.) If a patient is able to consent to care under the Adult Health Care Consent Act, a guardianship may not be necessary. A conservatorship may not be necessary if the adult's only cash asset is a monthly Social Security check or if the adult's only asset, other than monthly Social Security checks, is real property and no changes are proposed for the property at this time. If a Durable Power of Attorney exists, a conservatorship may be avoided.