Probate

Probate (Guardianship and Conservatorship)

Guardianships and Conservatorships are established by Probate Courts to allow a person named by the Court to make decisions for people who are unable to make medical, personal, and financial decisions for themselves.

In South Carolina, Guardianships are established for people who cannot make their own medical and personal decisions. Conservatorships are established to make financial decisions for those who are no longer able to manage their financial affairs.

In most cases, both a Conservatorship and a Guardianship are established at the same time. However it is not unusual for only a Guardianship to be set up if the incapacitated person has a General Durable Power Of Attorney, or for only a Conservatorship to be established if the incapacitated person has a Health Care Power Of Attorney.

The Process

If a family member, friend, or governmental agency believes that a person cannot make medical decisions for him- or herself or that a person cannot take care of their financial affairs, they can file a Petition to establish a guardianship and/or conservatorship for that person.

Indications that a Guardianship may be necessary:

  • a person is not taking medication as directed;

  • someone is not following medical care advice;

  • someone is living in an unhealthy situation.

Signs that a Conservatorship may be necessary:

  • a person is giving away money for no identifiable reason;

  • a person is indiscriminately entering lotteries and/or sweepstakes;

  • a person has demonstrated a pattern of late and non-payment of bills;

  • a person had been able to balance a checkbook but is now unable to do so;

  • a person is buying personal property that is not needed, or giving away real estate or other assets for no apparent reason.

Once the Petition is filed, a hearing is set by the (Probate) Court. All heirs are given notice of the filing of the Petition.

Sometime prior to the hearing two medical providers, one of which is a physician, will examine the person for whom the guardianship or conservatorship is sought to determine whether the person is unable to take care of him- or herself or manage his or her financial affairs.

The hearing is usually held six weeks or more from the date the Petition is filed. In some cases emergencies may exist that cannot wait for the hearing to address the emergency. In that event, a Petition can be filed for emergency relief, requesting the Court to issue emergency orders to provide relief from the problem until the hearing, at which time more permanent solutions can be crafted.

At the time of the hearing, the medical reports are filed with the court. These reports include a recommendation as to whether a Guardianship and/or a Conservatorship are needed. Testimony from the health care providers and others who have an interest in the matters are also heard by the Court.

At the end of the hearing, the Court will determine whether the person is incapacitated and is unable to manage his or her medical or financial affairs. The Court will then name who the Conservator or Guardian will be. Both the Conservator and Guardian will be empowered to manage the financial, placement (living arrangements), and medical decisions the Court directs them to make.

In addition, the Court will identify which decisions the individual will no longer be able to make for him- or herself. For example, the Court can find and enter an order that will:

  • Prevent the person from selling real estate or other assets;

  • Prevent the person from giving away assets;

  • Limit the person’s ability to write checks or withdraw money from accounts.

In Guardianships, the Court will:

  • Name a guardian who will make medical and placement decisions for the incapacitated person.

  • The Court will also identify the medical decisions the Guardian can make for the incapacitated person and where he or she will live and what kind of care he or she will receive.

Neither Guardianships nor Conservatorships are forever. A Guardian or Conservator can be replaced if they do not do a good job. In addition, if some restriction(s) originally imposed upon the incapacitated person is/are no longer needed, the restriction(s) can be modified or eliminated. Also, more restrictions can be imposed if necessary.

As a lawyer who is experienced in Guardianships and Conservatorships, Dennis Christensen is dedicated to protecting your loved one’s assets while helping to ensure that he or she gets the best care possible when he or she needs it most. For a consultation with Dennis’ firm, contact our law office today.