Let us navigate you or your loved one through this difficult process. Our clients often come to us just trying to understand what these terms mean, when and why they're necessary and how we can help. We strongly urge you to take advantage of a consult so that we can understand your unique circumstances, but we've attempted to answer some of the most common questions below:
What is a guardianship?A guardianship is court authority to make decisions for another person (often called a "ward"). People often think of guardianship over a minor when they hear this term (please see our Family Court team if you were looking for that information); however, in this section, we are referring to guardianship over an incapacitated adult who cannot care for themselves due to some illness or other mental deficiency. The most common example is someone who has dementia or Alzheimer's disease and can no longer make decisions for themselves. Other examples include people who have a disability or have suffered a brain injury and are not able to act in their own best interest. A guardian makes decisions such as where the person will live, makes arrangements for his/her care and handles health care decisions including end-of-life issues. A court appointed guardian must make yearly reports to the Probate Court regarding the condition of the incapacitated person.
What is a conservator?Much like a guardian, a conservator is also a court appointed person who handles the affairs of someone who is unable to do so on their own; however, a conservator handles financial matters such as managing and protecting assets, paying all legitimate bills and working with the guardian to pay for their care and welfare. The conservator also reports periodically to the court about income and expenses and is often required to create a monthly budget for the ward.
How is a conservatorship or guardianship established? The process begins by someone (usually a family member or interested party) petitioning the Probate Court to establish a conservatorship or guardianship (or both). The court schedules a hearing to determine whether the person over whom the guardianship is sought is legally incapacitated. Medical evidence of incapacity is required and the court will provide a guardian ad litem to represent the interest of the alleged incapacitated party. If the judge decides that the person is legally incapacitated and in need of protection, the court may appoint a guardian (personal decision making) or conservator (financial decision making) or both. The court then supervises the conservator and/or guardian.
Do I have to have an attorney? An attorney is not necessary in every case; however, it's wise to consult with an attorney before beginning the process so you can make an informed decision. It's worth the consult fee to make sure you proceed correctly.
I've been named as a Power of Attorney. Do I still need to become a conservator or guardian? If you're lucky, the answer is no. A properly drafted and executed Health Care Power of Attorney will often eliminate the need for a guardian. Similarly, a properly drafted and executed General Durable Power of Attorney will often eliminate the need for a conservator. (Reminder: If you don't have these documents in place for yourself, please consult our Estate Planning team and take care of this immediately). That being said, situations do arise where court involvement is necessary. At times, it's also necessary to use this process to remove someone who is serving as a power of attorney, but isn't acting in the best interest of the incapacitated.
What is a fiduciary? This word is commonly used in Probate law and specifically in the context of conservators and guardians. Generally, a fiduciary is someone to whom property or power is entrusted for the benefit of another. For example, a Trustee is a fiduciary for the beneficiaries of the trust. A Personal Representative is the fiduciary for the beneficiaries of an estate. A conservator or guardian is a fiduciary for their ward. Being a fiduciary comes with many responsibilities so it's very important to understand your obligations before agreeing to become a fiduciary or proceeding in court.
Who has priority to serve as a conservator or guardian? South Carolina law dictates who has priority to serve and preference will always be given to the person chosen by the ward. To the extent possible, the ward may state his or her preference during the process. Preference will also be given to a party the ward has chosen in writing through execution of a power of attorney. If the ward has not or can no longer express a preference, a spouse has the highest priority, followed by the adult children of the ward. In some situations, when there is not a suitable family member to serve or the family is in disagreement, the court might appoint a neutral person who is unrelated. These are sometimes referred to as "uninterested" or "third party" fiduciaries. Our firm often serves in this capacity and we also help families and wards locate suitable conservators and guardians when needed.
Where can I learn more? If you or a loved one may be in need of a conservator or guardian, we recommend several resources:
Get a consult with a qualified probate attorney that can answer all of your case specific questions. Our firm currently offers a one-hour consult for only sixty ($60) dollars. This can be handled in person or by phone.
Watch the Self-Help Videos for both conservatorship and guardianship on the South Carolina Bar website.
Check out our Probate Blog as we often cover topics of interest for all fiduciaries.
Read the Consumer Financial Protection Bureau's guide to serving as a conservator. We've made it available for you to read and download here.
It's normal to have a lot of questions about conservators and guardians. We can help. Please call our team or schedule an appointment. We look forward to meeting you and becoming your Attorney's For Life.