Client & Payment PortalGuardianships & Conservatorships
Protect and Care for Your Loved Ones Through a Guardianship or Conservatorship
Through a guardianship or conservatorship proceeding, a court may appoint an individual or institution as guardian or conservator for a minor child or an incapacitated adult. We help guide our clients through the process of discerning whether a guardianship or conservatorship is necessary, and if so, how to navigate the court proceedings. Through a court proceeding, the court determines whether it is necessary, and in the best interests of the alleged incapacitated individual, to appoint a guardian or conservator. A guardian or conservator will only be appointed if less restrictive alternatives, such as a Health Care Power of Attorney, Durable Power of Attorney, or other support systems, are not available or sufficient to meet the individual’s needs. The court appoints a guardian to manage an individual’s care, treatment, and placement. Based on the individual’s level of incapacity (e.g. total, partial, etc.), the court may remove certain rights of the individual to make decisions and take independent actions, including the right to marry, vote, drive, travel without consent, and enter into contracts. Generally, the guardian must update the court annually regarding the mental and physical condition of the individual in their care. The court appoints a conservator if an incapacitated individual has assets (e.g. bank accounts, investments, real property) requiring management. Generally, the conservator must update the court annually regarding the administration of the individual’s assets, including a complete accounting of receipts and disbursements. However, if an individual’s only financial asset is Social Security income, then a simplified method known as a Representative Payee appointed by the Social Security Administration can often manage these funds. In such cases, a formal conservatorship by be necessary.
Frequently Asked Questions About Guardianships & Conservatorships
Typically, when parents prepare their estate plans, in their Wills they express their desires regarding who they would like to serve as guardian(s) of their minor or incapacitated children by naming specific people they trust. If both parents die when their child is still a minor, or is incapacitated such that they need a guardian, there is a hearing in front of a judge to determine the most appropriate person to serve as the guardian of that individual. However, the court will 4930-9534-9651, v. 1 give significant weight to the guardian nominated in the Will of a child’s deceased parent when determining who should serve as the child’s guardian. See S.C. Code §§ 62-5-301, 308.
A petition for a finding of incapacity and the appointment of a guardian or conservator may be filed by any party concerned with the individual’s welfare, regardless of whether the petitioner intends to serve in that capacity.
You may petition the court up to one hundred eighty (180) days (i.e. approximately six (6) months) prior to your child’s eighteenth (18th) birthday. However, a court order appointing a guardian will not be entered until on or after the child’s eighteenth (18th) birthday. See S.C. Code § 62-5-303(C).
“Incapacity” 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 or her physical health, safety, or self-care, necessitating the need for a guardian; or (b) manage his property or financial affairs or provide for his or her support or for the support of his or her legal dependents, necessitating the need for a protective order. See S.C. Code § 62-5-101(13).
If the individual has capacity to enter into contracts, is of sound mind, and is at least age eighteen (18), such individual may sign a durable power of attorney and/or health care power of attorney appointing another person to manage his or her financial affairs and make health care decisions for him or her. This option is less restrictive than a guardianship or conservatorship, and provides the individual more autonomy. Furthermore, parents can often avoid the need for a court appointed conservator for their minor child(ren) by establishing trusts to receive a minor child’s inheritance. While a guardian may still be necessary to provide physical care, a trust allows a chosen trustee, rather than a court supervised conservator, to manage the child’s inheritance.
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Signs That You May Need Us
If you’re unsure whether you need an estate planning attorney, consider these signs:
- Have significant assets, including life insurance
- Want to minimize or defer estate taxes
- Want to minimize capital gains taxes
- Want to avoid probate
- Want to leave assets to charity
- Own a business and need to plan for successor(s)
- Are concerned about long-term care
- Are concerned about complex disposition of assets due to family dynamics
- Have a second marriage and children from prior marriage(s)
- Have descendants or other beneficiaries who are incapable of managing their own assets
- Want to protect the assets you leave your descendants from creditors and divorce
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