Guardianship

 Adult guardianship is a legal relationship between a court-appointed individual or program (the "guardian") and an individual who is found by the court to be incapacitated (the "ward") due to dementia, developmental disability, stroke, brain injury, chronic mental illness or other causes.
 

A developmental disability or mental illness is not, by itself, a sufficient reason for the court to rule that a person is incapacitated. The court must find that due to a mental condition, such as those listed above, the individual is substantially unable to provide for his or her physical, emotional, medical and residential needs. A person may be deemed "incapacitated" ifhe or she is not able to make "informed decisions" with regard to these needs.

Guardianship

Guardianship/Conservatorship

 

When a person needs help making decisions about his/her care and well-being, guardianship is one important option to consider. Guardianship involves an individual, usually a family member, assuming the role of Guardian over an incapacitated person. A Guardian has the responsibility to make decisions for the incapacitated person in regards to healthcare and their well-being.

Conservatorship involves an individual assuming the role of Conservator over an incapacitated person. A Conservator has the responsibility of managing the incapacitated individual's finances.  

What is an Incapacitated Person?

 

In South Carolina, according to the South Carolina Probate Code, an incapacitated person is someone who is impaired due to a mental illness, a mental or physical disability, advanced age, or other causes.

An individual who is disabled or makes bad decisions is not necessarily incapacitated. An incapacitated person is unable to make responsible choices about his/her well-being, whereas a person who makes bad decisions simply chooses not to make decisions in the best interest of their welfare.  

What are the requirements for appointing a Guardian?

 

The Probate Court is the only court that can appoint a Guardian for an adult. In order for a person to be appointed, the Probate Court must receive clear and convincing evidence, in a court hearing, the individual in question is clearly incapacitated, and the person applying to be the Guardian is the must appropriate choice to serve as Guardian. The same requirements apply for Conservatorship. 

Who may need a guardian or conservator?

 

There are several different indicators a person might need a guardian or a conservator. Some examples are:

1. An adult individual who is unable to make reasoned healthcare decisions or take proper care for himself or herself.

2. An adult who does not have a Healthcare Power of Attorney appointing an agent to make healthcare decisions.

3. An adult who is unable to handle their finances and properly manage their money.

4. An adult who is dying and has no Healthcare Power of Attorney or Living Will stating desires.

5. An adult who is in a facility and needs an advocate to make sure all of their needs are met. 

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Elder Law & Estate Planning Center

Elder Law Center, 10 Pinckney Colony Rd, Suite 400, Bluffton, South Carolina 29910

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