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 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 their ward. Guardians for minors are designated by the Family Court.
A Conservator manages financial affairs or property for an incapacitated adult 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. No expenditures can occur without written Court order. If you are appointed conservator by the Court, it will be your responsibility to dutifully handle the financial situation of the protected person as stipulated 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 discuss whether or not a guardianship or conservatorship is needed with an attorney.
How do I start, and how much does it cost?
Because this is a legal proceeding, we strongly recommend that you contact an attorney who practices in the Probate Court. Lawyer's fees can vary depending on the circumstances and complexity of the case. The Court will appoint appoint an attorney to represent the allegedly incapacitated adult.
What is the general procedure?
Guardianship: A Guardian is appointed after a hearing where testimony from family, a physician and licensed social worker indicate that the person is in need of a Guardian to assist in his/her personal care. All prospective Guardians must review an educational video on the process.
Conservatorship: A Conservator is appointed after a hearing where various professionals indicate that the medical and social status of the allegedly incapacitated adult requires a Conservator. All prospective Conservators must review an educational video on the process.
Please note, the guardianship and conseravatorship appointment proceedings have several steps; generally the appointment of a guardian and/or conservator takes a minimum of sixty to ninety days.
How do I handle the money?
Filing fees are set by law and must be paid to the Court. If a Guardian and/or Conservator is appointed, the fees are generally paid from the estate of the protected person. Attorneys, examiners, visitors and others may be entitled to reasonable compensation for services as determined by the Court.
How does the death of a protected person affect the guardianship or conservatorship?
The Guardian or Conservator will be discharged. The Personal Representative of the estate will then take over the management of the financial affairs from the Conservator. Please note, the Conservator will be required to file final paperwork, accounting for all assets, prior to the conservatorship being terminated.
What if I die or can no longer serve as Guardian or Conservator?
A Special Conservator or Guardian may be appointed by the Court in such emergency situations. You may not "quit" as Guardian or Conservator, but you may have someone else petition the Court to be appointed Successor Guardian or Conservator of the protected person.
When are protective proceedings NOT necessary?
If a Health Care Power of Attorney exists, a guardianship may be avoided. 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.