GUARDIANSHIP AND CONVERVATORSHIP
Yes. If a person has signed a financial power of attorney or a health care power of attorney, a guardianship or conservatorship might not be necessary. Also, under the South Carolina Adult Health Care Consent Act (SC Code Annotated ยงยง44-66-10 et seq.), certain relatives of an incapacitated person can make health care decisions on their behalf. Of course, there is no guarantee that third parties (such as banks, doctors, or hospitals) will accept a power of attorney. Particularly when there is disagreement among the family, this could be a question.
Guardianship is a court appointment to make personal care decisions (such as medical or health care-related decisions) for an incapacitated person. Conservatorship is a court appointment to make financial decisions and handle financial matters for an incapacitated person.
No. The law requires only that the person be incapacitated, which is not the same as mental incompetence. An example of someone who is incapacitated, but not incompetent, is someone who is mentally ill (they may always have a mental illness, and thus be incapacitated, but the illness may not always make them mentally incompetent).
Yes. Usually the court must find that there are matters of either a financial or personal care nature that must be handled and that there are no other adequate measures in place, such as powers of attorney, that could resolve them. Other requirements exist to protect the person involved, such as the requirement that an attorney represent them in court.
Yes. These appointments can have limited purposes, such as creation of a trust, sale of real estate, or transfer of assets. They can be limited in duration when the necessary actions can be taken quickly. They can also give only limited powers, such as a guardianship of a disabled person who might be able to handle some, but not all, of their decisions.
Yes. This is frequently the case, since a disabled person may be in some imminent danger, and immediate court intervention may be necessary to prevent serious harm. Courts usually require specific proof of the circumstances creating an emergency.
Yes. Agents under powers of attorney are chosen by the person involved, and they can exercise whatever powers the power of attorney gives them (whether broad or limited). Conservators and guardians are appointed by a court and exercise powers conferred on them by the court, as well as (usually) a set of statutory powers.
The time period can vary considerably, but the simplest proceedings usually take at least thirty days, and more complex proceedings can take six months or more.
This website is designed for general information only and should not be construed to be legal advice or the formation of a lawyer/client relationship. You should consult a qualified attorney for individual advice regarding your own situation.